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Canadian Human Tribunal canadien

Rights Tribunal des droits de la personne

Citation: 2019 CHRT 39


Date: September 6, 2019
File No.: T1340/7008

Between:
First Nations Child and Family Caring Society of Canada
- and
-Assembly of First Nations

Complainants

- and -
Canadian Human Rights Commission
Commission

- and -
Attorney General of Canada
(Representing the Minister of Indigenous and Northern Affairs Canada)

Respondent

- and -
Chiefs of Ontario

- and -
Amnesty International

- and -
Nishnawbe Aski Nation
Interested parties

Ruling

Members: Sophie Marchildon


Edward P. Lustig
Table of Contents
I. Introduction ............................................................................................................... 1
II. Context ...................................................................................................................... 1
III. The Panel’s summary reasons and views on the issue of compensation................. 4
IV. Parties’ positions ....................................................................................................... 5
V. The Tribunal’s authority under the Act and the nature of the claim......................... 26
VI. Victims under the CHRA ......................................................................................... 30
VII. Pain and suffering analysis ..................................................................................... 33
VIII. The Evidence in the Tribunal record ....................................................................... 44
IX. Organizations cannot receive compensation and do not represent victims’
argument ................................................................................................................. 60
X. The right to exercise individual rights, class action and victims’ identification ........ 62
XI. Class actions and representative of the victims ...................................................... 63
XII. Jordan’s Principle remedies .................................................................................... 63
XIII. Special compensation wilful and reckless ............................................................... 71
XIV. Orders ..................................................................................................................... 81
XV. Process for compensation ...................................................................................... 87
XVI. Interest .................................................................................................................... 89
XVII. Retention of jurisdiction ........................................................................................... 90
I. Introduction

We believe that the Creator has entrusted us with the sacred responsibility
to raise our families…for we realize healthy families are the foundation of
strong and healthy communities. The future of our communities lies with our
children, who need to be nurtured within their families and communities.
(see 1996 report of the Royal Commission on Aboriginal Peoples (RCAP),
Gathering strength, vol. 3, p. 10 part of the Tribunal’s evidence record).

[1] The Special Place of Children in Aboriginal Cultures

Children hold a special place in Aboriginal cultures (...) They must be


protected from harm (…). They bring a purity of vision to the world that can
teach their elders. They carry within them the gifts that manifest themselves
as they become teachers, mothers, hunters, councillors, artisans and
visionaries. They renew the strength of the family, clan and village and make
the elders young again with their joyful presence.

Failure to care for these gifts bestowed on the family, and to protect children
from the betrayal of others, is perhaps the greatest shame that can befall an
Aboriginal family. It is a shame that countless Aboriginal families have
experienced, some of them repeatedly over generations. (see RCAP,
Gathering strength vol. 3, p. 21).

[2] This Panel recognizes the shame and the pain and suffering experienced by
children, families and communities who were deprived of this vital right to live in their
families and communities as a result of colonization, racism and racial discrimination.

[3] This shame is not for you to bear, it is one for the entire Nation of Canada to bear,
in the hope of rebuilding together and achieving reconciliation.

II. Context

[4] In First Nations Child and Family Caring Society of Canada et al. v. Attorney
General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2
(the Decision), this Panel found the Complainants had substantiated their complaint that
First Nations children and families living on reserve and in the Yukon are denied equal
child and family services, and/or differentiated adversely in the provision of child and family
services, pursuant to section 5 of the Canadian Human Rights Act (the CHRA).
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[5] The Panel generally ordered Aboriginal Affairs and Northern Development Canada,
now Department of Indigenous Services Canada (DISC), to cease its discriminatory
practices and reform the First Nations Child and Family Services (FNCFS) Program and
the Memorandum of Agreement Respecting Welfare Programs for Indians applicable in
Ontario (the 1965 Agreement) to reflect the findings in the Decision. INAC was also
ordered to cease applying its narrow definition of Jordan’s Principle and to take measures
to immediately implement the full meaning and scope of the principle.

[6] In the 2016 CHRT 2 Decision, at para.485, the Panel wrote:

Under section 53(2)(e), the Tribunal can order compensation to the victim of
discrimination for any pain and suffering that the victim experienced as a
result of the discriminatory practice. In addition, section 53(3) provides for
the Tribunal to order compensation to the victim if the discriminatory practice
was engaged in willfully or recklessly. Awards of compensation under each
of those sections cannot exceed $20,000 under the statute.

[7] The Panel had outstanding questions for the parties in regards to compensation
and deferred its ruling to a later date after its questions had been answered. Given the
complexity and far-reaching effects of these orders, the Panel requested further
clarification from the parties on how these orders could best be implemented on a
practical, meaningful and effective basis, both in the short and long term. It also requested
further clarification with respect to the Complainants’ requests for compensation under
sections 53(2)(e) and 53(3) of the CHRA. The Panel retained jurisdiction to deal with these
outstanding issues following further clarification from the parties.

[8] The Panel advised the parties it would address the outstanding questions on
remedies in three steps.

First, the Panel will address requests for immediate reforms to the FNCFS
Program, the 1965 Agreement and Jordan’s Principle. Other mid to long-
term reforms to the FNCFS Program and the 1965 Agreement, along with
other requests for training and ongoing monitoring will be dealt with as a
second step. Finally, the Panel will address the requests for compensation
under ss. 53(2)(e) and 53(3) of the CHRA. (see 2016 CHRT 10 at, paras.1-
5).
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[9] The Panel reiterated its desire to move on to the issue of compensation in a 2018
ruling and wrote as follows:

The Panel reminds Canada that it can end the process at any time with a
settlement on compensation, immediate relief and long-term relief that will
address the discrimination identified and explained at length in the Decision.
Otherwise, the Panel considers this ruling to close the immediate relief
phase unless its orders are not implemented. The Panel can now move on
to the issue of compensation and long-term relief. (see 2018 CHRT 4 at,
para 385). Parties will be able to make submissions on the process,
clarification of the relief sought, duration in time, etc. (see 2018 CHRT 4 at,
para. 386).

Moreover, the Panel added that it took years for the First Nations children to
get justice. Discrimination was proven. Justice includes meaningful
remedies. Surely Canada understands this. The Panel cannot simply make
final orders and close the file. The Panel determined that a phased approach
to remedies was needed to ensure short term relief was granted first, then
long term relief, and reform which takes much longer to implement. The
Panel understood that if Canada took 5 years or more to reform the
Program, there was a crucial need to address discrimination now in the most
meaningful way possible with the evidence available now. (see 2018 CHRT
4 at, para. 387).

[10] The Panel also said:

Akin to what was done in the McKinnon case, it may be necessary to remain
seized to ensure the discrimination is eliminated and mindsets are also
changed. That case was ultimately settled after ten years. The Panel hopes
this will not be the case here. (see 2018 CHRT 4 at, para. 388).

[11] In terms of the impacts of this case on First Nations children and their families the
Panel added:

In any event, any potential procedural unfairness to Canada is outweighed


by the prejudice borne by the First Nations’ children and their families who
suffered and, continue to suffer, unfairness and discrimination. (see 2018
CHRT 4 at, para. 389).

[12] After having addressed other pressing matters in this case, the Panel provided
clarification questions to the parties on the issue of compensation. The Panel allowed the
parties to answer those questions, to file additional submissions and to make oral
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arguments on this issue. The purpose of this ruling is to make a determination on the issue
of compensation to victims/survivors of Canada’s discriminatory practices.

III. The Panel’s summary reasons and views on the issue of compensation

[13] This ruling is dedicated to all the First Nations children, their families and
communities who were harmed by the unnecessary removal of children from your homes
and your communities. The Panel desires to acknowledge the great suffering that you
have endured as victims/survivors of Canada’s discriminatory practices. The Panel
highlights that our legislation places a cap on the remedies under sections 53 (2) (e) and
53 (3) of the CHRA for victims the maximum being $40,000 and that this amount is
reserved for the worst cases. The Panel believes that the unnecessary removal of children
from your homes, families and communities qualifies as a worst-case scenario which will
be discussed further below and, a breach of your fundamental human rights. The Panel
stresses the fact that this amount can never be considered as proportional to the pain
suffered and accepting the amount for remedies is not an acknowledgment on your part
that this is its value. No amount of compensation can ever recover what you have lost, the
scars that are left on your souls or the suffering that you have gone through as a result of
racism, colonial practices and discrimination. This is the truth. In awarding the maximum
amount allowed under our Statute, the Panel recognizes, to the best of its ability and with
the tools that it currently has under the CHRA, that this case of racial discrimination is one
of the worst possible cases warranting the maximum awards. The proposition that a
systemic case can only warrant systemic remedies is not supported by the law and
jurisprudence. The CHRA regime allows for both individual and systemic remedies if
supported by the evidence in a particular case. In this case, the evidence supports both
individual and systemic remedies. The Tribunal was clear from the beginning of its
Decision that the Federal First Nations child welfare program is negatively impacting First
Nations children and families it undertook to serve and protect. The gaps and adverse
effects are a result of a colonial system that elected to base its model on a financial
funding model and authorities dividing services into separate programs without proper
coordination or funding and was not based on First Nations children and families’ real
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needs and substantive equality. Systemic orders such as reform and a broad definition of
Jordan’s Principle are means to address those flaws.

[14] Individual remedies are meant to deter the reoccurrence of the discriminatory
practice or of similar ones, and more importantly to validate the victims/survivors’ hurtful
experience resulting from the discrimination.

[15] When the discriminatory practice was known or ought to have been known, the
damages under the wilful and reckless head send a strong message that tolerating such a
practice of breaching protected human rights is unacceptable in Canada. The Panel has
made numerous findings since the hearing on the merits contained in 10 rulings. Those
findings were made after a thorough review of thousands of pages of evidence including
testimony transcripts and reports. Those findings stand and form the basis for this ruling. It
is impossible for the Panel to discuss the entirety of the evidence before the Tribunal in a
decision. However, compelling evidence exists in the record to permit findings of pain and
suffering experienced by a specific vulnerable group namely, First Nations children and
their families. While the Panel encourages everyone to read the 10 rulings again to better
understand the reasons and context for the present orders, some ruling extracts are
selected and reproduced in the pain and suffering, Jordan’s Principle and Special
compensation sections below for ease of reference in elaborating this Panel’s reasons.
The Panel finds the AGC’s position on compensation unreasonable in light of the
evidence, findings and applicable law in this case. The Panel’s reasons will be further
elaborated below.

IV. Parties’ positions

[16] The Panel carefully considered all submissions from all the parties and interested
parties and in the interest of brevity and conciseness, the parties’ submissions will not be
reproduced in their entirety.

[17] The Caring Society states that the evidence in this case is overwhelming: Canada
knew about, disregarded, ignored or diminished clear, cogent and well researched
evidence that demonstrated the FNCFS Program’s discriminatory impact on First Nations
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children and families. Canada also ignored evidence-informed solutions that could have
redressed the discrimination well before the complaint was filed, and certainly in advance
of the hearings. Indeed, the Tribunal’s findings are clear that Canada was reckless and
was often more concerned with its own interests than the best interests of First Nations
children and their families.

[18] The Caring Society submits that this case embodies the “worst case” scenario that
subsection 53(3) was designed for, and is meant to deter. Multiple experts and sources,
including departmental officials, alerted Canada to the severe and adverse effects of its
FNCFS Program. Over many years, Canada knowingly failed to redress its discriminatory
conduct and thus directly and consciously contributed to the suffering of First Nations
children and their families. The egregious conduct is more disturbing given Canada’s
access to evidence-based solutions that it ignored or implemented in a piece-meal and
inadequate fashion.

[19] The Caring Society further argues that the evidence is clear that the maximum
amount of $20,000 in special compensation is warranted for every First Nations child
affected by Canada’s FNCFS Program and taken into out-of-home care since 2006. The
Government of Canada willfully and recklessly discriminated against First Nations children
under the FNCFS Program and it was not until the Tribunal’s decision and subsequent
compliance orders (2016 CHRT 10, 2016 CHRT 16, 2017 CHRT 14 (as amended by 2017
CHRT 35), 2018 CHRT 4 and 2019 CHRT 7) that Canada has slowly started to remedy
the discrimination.

[20] As such, the Caring Society submits that Canada ought to pay $20,000 for every
First Nation child affected by Canada’s FNCFS Program who has been taken into out-of-
home care since 2006 through to the point in time when the Panel determines that Canada
is in full compliance with the January 26, 2016 Decision.

[21] Also, the Caring Society adds that every First Nations child affected by Canada’s
FNCFS Program who has been taken into out-of-home care between 2006 and the point
when the FNCFS Program is free from perpetuating adverse impacts is entitled to $20,000
in special compensation under subsection 53(3) of the CHRA. Canada is keenly aware
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that many of the discriminatory aspects of the FNCFS Program remain unchanged and
until long-term reform is complete, First Nations children will continue to experience
discrimination. Those children deserve to be recognized and acknowledged, and
Canada’s continuation of this conduct in this program should be denounced, to (in the
words of Mandamin J.) “provide a deterrent and discourage those who deliberately
discriminate” in order to prevent continuation and recurrence of such discriminatory
conduct in future, including generally in other programs.

[22] The Caring Society contends that from the moment that the House of Commons
unanimously passed Motion 296, Canada knew that failing to implement Jordan’s Principle
would cause harm and adverse impacts for First Nations children. Nonetheless, Canada
did not take meaningful steps to implement Jordan’s Principle for nearly another decade,
after this Tribunal’s numerous decisions and non-compliance orders requiring it to do so.
By failing to implement it and making the informed choice to deny the true meaning of
Jordan’s Principle, Canada knowingly and recklessly discriminated against First Nations
children. The Caring Society submits that the evidence in this case supports an award for
special compensation pursuant to subsection 53(3) of the CHRA for the victims of
Canada’s willfully reckless discriminatory conduct in relation to Jordan’s Principle from
December 2007 to November 2017.

[23] The Caring Society is of the view that the special compensation ordered for (i) each
First Nations individual affected by Canada’s FNCFS Program who, as a child, was been
taken into out-of-home care, since 2006; and (ii) for every for every First Nations individual
who, as a child, did not receive an eligible service or product pursuant to Canada’s willful
and/or reckless discriminatory approach to Jordan’s Principle from December 2007 to
November 2017, should be paid into a trust for the benefit of those children.

[24] The Caring Society is requesting an order similar to that granted by this Tribunal in
2018 CHRT 4: an order under section 53(2)(a) of the CHRA for the Caring Society, the
AFN, the Commission, Chiefs of Ontario, Nishnawbe Aski Nation and Canada to consult
on the appointment of seven Trustees. If the parties cannot agree on who the trustees
should be, the seven trustees of the Trust would be appointed by order of the Tribunal.
The mandate of the Trustees will be to develop a trust agreement in accordance with the
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Panel’s reasons, outlining among other things: (i) the purpose of the Trust; (ii) who the
beneficiaries are; (iii) how a beneficiary qualifies for a distribution; (iv) programs that will be
eligible and in keeping with the objective of the Trust; (v) how decisions of the Board of
Trustees shall be made; and (vi) how the Trust will be administered.

[25] The Caring Society further requests an order that the parties report back within
three months of the Panel’s decision, with respect to the progress of the appointment of
the Trustees. The Caring Society believes that an in-trust remedy will provide a meaningful
remedy for First Nations children and families impacted by the willfully reckless
discriminatory impact of the FNCFS Program and Jordan’s Principle. It enables persons
who were victims of Canada’s discriminatory conduct to access services to remediate, in
part, the impacts of discrimination.

[26] The Caring Society supports AFN’s request for compensation in relation to both
pain and suffering (section 53(2)(e)) and willful and reckless discrimination (section 53(3))
of the CHRA. Certainly, the victims in this case have experienced pain and suffering, with
some First Nations children losing their families forever and some First Nations children
losing their lives. In addition, on a principled basis, the Caring Society agrees with the
AFN’s request for individual compensation. We also recognize that an individual
compensation process will require special and particular sensitivities regarding the
significant issues of consent, eligibility and privacy. Many of the victims of Canada’s
discriminatory conduct are children and young adults who are more likely to experience
historical disadvantage and trauma.

[27] According to the Caring Society, any process that is put in place will need to adopt
a culturally informed child-focused approach that attends to these realities. Such persons
may also have their own claims against Canada, whether individually or as part of a
representative or class proceeding, and it is not possible for the parties to ascertain the
views of all such potential claimants on individual compensation through the Tribunal’s
process. The Caring Society is also aware of the significant and complex assessment
processes required to administer and deliver individual compensation. Best estimates
suggest that an order for individual compensation for those taken into out-of-home care
could affect 44,000 to 54,000 people. In terms of Jordan’s Principle, after the Tribunal
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issued its May 26, 2017 Order, the number of approvals significantly increased (indeed,
over 84,000 products/services were approved in fiscal year 2018-2019), and Canada’s
witness regarding Jordan’s Principle has acknowledged that these requests reflected
unmet needs.

[28] Regarding the Panel’s question of “who should decide for the victims”, the Caring
Society respectfully advances that the Tribunal, assisted by all of the parties, is in the best
position to decide the financial remedy at this stage of the proceeding. The Tribunal has
experience in awarding financial compensation to victims of discrimination and has a
sense, through a common-sense approach, of what is and what is not reasonable.
Indeed, this Panel is expertly immersed in this case. It understands the FNCFS Program
and Jordan’s Principle, the impacts experienced by First Nations children and the
importance of ensuring long-term reform. It has also demonstrated that the centrality of
children’s best interests in decision-making which is essential to justly determining how the
victims of discrimination in this case ought to be compensated.

[29] The victims’ rights belong to the victims. While the Caring Society supports the
request made by the AFN, the Caring Society’s request for an in-trust remedy does not
detract or infringe on victims’ rights to directly seek compensation or redress in another
forum. It is for this reason that the Caring Society respectfully seeks an order under
subsection 53(3) that Canada pay an amount of $20,000 as compensation, plus interest
pursuant to s. 53(4) of the CHRA and Rule 19(2) of the Canadian Human Rights Tribunal
Rules of Procedure, for every First Nations child affected by Canada’s FNCFS Program
who has been taken into out-of-home care since 2006 until long-term reform is in place
and for every for every First Nations child who did not receive an eligible service or product
pursuant to Canada’s discriminatory approach to Jordan’s Principle since December 12,
2007 to November 2017.

[30] The Assembly of First Nations (AFN) is requesting an order for compensation to
address the discrimination experienced by vulnerable First Nations children and families in
need of child and family support services on reserve.
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[31] The AFN submits that the Panel stated in the main decision: “Rooted in racist and
neocolonialist attitudes, the individual and collective trauma imposed on Aboriginal people
by the Residential Schools system is one of the darkest aspects of Canadian history….the
effects of Residential Schools continue to impact First Nations children, families and
communities to this day”(see 2016 CHRT 2 at, para 412).

[32] The AFN submits the pain and suffering of the victimized children and families is
significant according to the Affidavit of Dr. Mary Ellen Turpel-Lafond affirmed April 3, 2019,
and it is also directly linked to the Respondent’s discriminatory practice. Based on the
circumstances in this case, the AFN seeks on behalf of individual First Nations children
and families the maximum compensation available under s. 53(2)(e) and 53(3) of the
CHRA, on a per individual basis for any pain and suffering. Given the voluminous
evidentiary record before the Tribunal in this matter, and the particular experience to date
this Panel has had presiding over this matter, as well as the Panel’s expertise under the
CHRA, the AFN believes the Tribunal is the appropriate forum to address individual
compensation given the unique circumstances of this case and based on an expert panel
advisory.

[33] Individuals subjected to the Respondent’s discriminatory practice experienced a


great deal of pain and suffering and should receive compensation, in particular those who
were apprehended as a result of neglect. The AFN notes that some individuals were
apprehended as a result of abuse and access to prevention programs may have
prevented such abuse. Thus, in these circumstances a need for a case-by-case approach
becomes apparent thereby lending credibility to the AFN’s suggested approach to
establishing an expert panel to address individual compensation. With respect to the
evidence, the Tribunal is empowered to accept evidence of various forms, including
hearsay. Direct evidence from each individual impacted by the Respondent’s
discriminatory practice is not necessarily required to issue an award for pain and suffering.
Therefore, the Tribunal could find that evidence from some individuals could be used to
determine pain and suffering of a group.

[34] The AFN has been mandated by resolution following a vote by Chiefs in Assembly
to pursue compensation for First Nations children and youth in care, or other victims of
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discrimination, and to request the maximum compensation allowable under the Act based
on the fact that the discrimination was wilful and reckless, causing ongoing trauma and
harm to children and youth, resulting in a humanitarian crisis (see Assembly of First
Nations’ resolution: Special Chiefs Assembly, Resolution No. 85/2018, December 4, 5 and
6, 2018 (Ottawa, ON) re Financial Compensation for Victims of Discrimination in the Child
Welfare System).

[35] The AFN submits that compensation be awarded to each sibling, parent or
grandparent of a child or youth brought into care as a result of neglect or medical
placements resulting from the Respondent’s discriminatory practice, and that such
compensation be the maximum allowable under the Act.

[36] The AFN submits no further evidence is required from the AFN or other parties to
support and award the maximum compensation to the victims of discrimination as
requested, but that the Tribunal can rely on its findings to date.

[37] Both the Caring Society and the AFN submit it would be a cruel process to require
children to testify about their pain and suffering. Moreover, requiring each First Nation child
to testify before the Tribunal is inefficient and burdensome.

[38] The AFN further submits that the effects of the Respondent’s discriminatory
practices are real and they are significant. As the Panel found, the needs of First Nations
children and families were unmet in the Respondent’s provision of child and family
services which the AFN submits has caused pain and suffering for which compensation
ought to be awarded. The discrimination as found by the Panel was occurring across
Canada.

[39] The AFN recognizes that the payment of compensation to the victims of
discrimination may be a significant endeavor, considering the large number of individuals
and time period. An independent body, such as the Commission, could facilitate the
compensation scheme and payments. Whichever body is tasked with issuing the
compensation, such body will require timely, accurate and all relevant records from the
Respondent. Provisions will need to be adopted to protect the victims from unscrupulous
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money lenders and predatory businesses. Finally, a notice plan may facilitate connecting
individuals who are entitled to compensation payments.

[40] The AFN’s remedial request suggests that an expert panel be established and
mandated to address individual compensation to the victims of the Respondent’s
discriminatory practice as an option. This function can be carried out by the Canadian
Human Rights Commission should they elect to take on this task. If so, the Respondent
should be ordered to fund their activities.

[41] Additionally, the AFN states that the request for compensation to be paid directly to
the victim of the Respondent’s discrimination is not unprecedented, and in fact many
parallels can be drawn from the Indian Residential School Settlement Agreement (IRSSA).
Parallels such as the Common Experience Payment (CEP) and its surrounding processes,
as well as the Independent Assessment Process (IAP), provide guidance in how a body
issuing payments could be established to address individual compensation with respect to
First Nations children and families discriminated against and victimized in this case.

[42] The AFN also submits that its National Chief and Executive Committee work in
collaboration with the Caring Society to ensure the administration and disbursement of any
payments to victims of discrimination come from funds other than the awards to the
victims, so that no portion of the quantum awarded be rolled back or claimed by lawyers or
legal representatives for assisting the victims.

[43] Overall, the AFN is interested in establishing a remedial process that may include
both monetary and non-monetary remedies under a process overseen by an independent
body. Given the potential for conflicts of interest in such a process, there would be a need
to ensure matters dealt with in the remedial process are free from the influence of the
parties, in particular Canada. In the IRSSA, the IAP process was isolated from the outside
litigation amongst the parties for this reason.

[44] The proposed remedial process to be overseen by the requested independent body
would be non-adversarial in nature, which is another hallmark from the IRSSA that the
AFN submits could be carried over in this case. Also, it could be based on an application
process that is designed to be streamlined and efficient.
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[45] The AFN advances that it is aware of the proposed class proceeding filed in
Federal Court last month. Currently, the class action is in the beginning stages and is
uncertified, and the nature of the action is very similar to the case at hand. The AFN
questions the accuracy of paragraph 11 of the statement of claim which reads mid-
paragraph: “No individual compensation for the victims of these discriminatory practices
has resulted or will result from the Tribunal decision”. It would appear the claimant is
anticipating that no individual compensation will result in this case before the Tribunal. In
response, the AFN and the other parties have planned all along that compensation was a
long-term remedy that should be addressed after the interim and mid-term relief was
addressed. The parties are currently carrying out that plan. The AFN submits the Panel
ignore that particular submission.

[46] The Chiefs of Ontario (COO) did not make written submissions on the issue of
compensation. In their oral submissions, the COO advised it is content with the other
parties’ requests for compensation.

[47] The Nishnawbe Aski Nation’s (NAN) goal is to ensure First Nations children receive
compensation for the discrimination found by this Tribunal. The NAN is in support of the
remedies sought by the Caring Society.

[48] The AGC relying on a number of cases makes several arguments that will not be
reproduced in their entirety rather given that the Panel considered all of them it is
appropriate to summarize them here and for the same above-mentioned reasons.

[49] The Attorney General of Canada (AGC) submits that remedies must be responsive
to the nature of the complaint made, and the discrimination found: that means addressing
the systemic problems identified, and not awarding monetary as compensation to
individuals. Awarding compensation to individuals in this claim would be inconsistent with
the nature of the complaint, the evidence, and this Tribunal’s past orders. In a complaint of
this nature, responsive remedies are those that order the cessation of discriminatory
practices, redress those practices, and prevent their repetition.

[50] Moreover, the AGC states that the CHRA does not permit the Tribunal to award
compensation to the complainant organizations in their own capacities or in trust for
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victims. The complainants are public interest organizations and not victims of the
discrimination; they do not satisfy the statutory requirements for compensation under the
Act. A class action claim seeking damages for the same matters raised in this complaint,
on behalf of a broader class of complainants and covering a broader period of time, has
already been filed in Federal Court (see T-402-19).

[51] The AGC submits this is a Complaint of Systemic Discrimination. In its 2014 written
submissions, the Caring Society acknowledged that this is a claim of systemic
discrimination, with no individual victims as complainants and little evidence about the
nature and extent of injuries suffered by individual complainants. The Caring Society
stated that it would be an “impossible task” to obtain such evidence. The absence of
complainant victims and the assertion that it would be "impossible” to obtain victims'
evidence strongly indicate that this is not an appropriate claim in which to award
compensation to individuals. The AFN appears to also acknowledge that this is a claim of
systemic discrimination: it alleges that the discriminatory practice is a perpetuation of
systemic discrimination and historic disadvantage.

[52] Also, the AGC argues, that complaints of systemic discrimination are distinct from
complaints alleging discrimination against an individual and they require different
remedies. Complaints of systemic discrimination are not a form of class action permitting
the aggregation of a large number of individual complaints. They are a distinct form of
claim aimed at remedying structural social harms. This complaint is advanced by two
organizations, the AFN and the Caring Society who sought systemic changes to remedy
discriminatory practices. It is not a complaint by individuals seeking compensation for the
harm they suffered as a result of a discriminatory practice. The complainant organizations
were not victims of the discrimination and they do not legally represent the victims.

[53] Additionally, the AGC contends the Canadian Human Rights Commission
considers this to be a complaint of systemic discrimination. Then Acting-Commissioner,
David Langtry, referred to it as such in his December 11, 2014 appearance before the
Senate Committee on Human Rights. In discussing how the Commission allocates its
resources, he specifically named this complaint as an example of a complaint of systemic
discrimination that merited significant involvement on the part of the Commission.
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[54] Furthermore, the AGC submits the evidence of the systemic nature of the complaint
is found in the identity of the complainants, the language of the complaint, the Statement
of Particulars, and the nature of the evidence provided to the Tribunal. The Tribunal’s
previous orders in this matter, clearly indicate that the Tribunal also regards this claim as a
complaint of systemic discrimination.

[55] Likewise, the AGC adds that in their initial complaint to the Canadian Human Rights
Commission, the complainants allege systemic discrimination. The framing of the
complaint is important. In the Moore case, the Supreme Court of Canada determined that
remedies must flow from the claim as framed by the complainants. In the complainants'
joint statement of particulars, they also indicated that this is a claim of systemic
discrimination.

[56] Besides, the AGC argues that claims by individual victims provide details of the
harms they suffered as a result of the discriminatory practice. If this were a claim alleging
discrimination against an individual or individuals, there would be evidence of the harm
they suffered as a result of the discrimination to demonstrate that the victims meet the
statutory requirements for compensation. No such evidence exists in this case. With
respect to child welfare practices, there is very little evidence in the record regarding the
impact of the discriminatory funding practice on individuals, particularly regarding
causation, that is, evidence of the link between the discriminatory practices and the harms
suffered. The AFN acknowledges that awards for pain and suffering require an evidentiary
basis outlining the effects of the discriminatory practice on the individual victims.

[57] According to the AGC, this Tribunal has only awarded compensation to individuals
in claims of systemic discrimination where they were complainants and where there was
evidence of the harm they had suffered. In this claim, the Tribunal lacks the strong
evidentiary record required to justify awarding individual remedies. An adjudicator must be
able to determine the extent and seriousness of the alleged harm in order to assess the
appropriate compensation and the evidence required to do so has not been provided in
this claim. The AGC submits further that no case law supports the argument that
compensation to individuals can be payable in claims of systemic discrimination without at
16

least one representative individual complainant providing the evidence needed to properly
assess their compensable damages.

[58] Moreover, the AGC advances that neither of the tools available to the Tribunal to
address the deficiency in evidence are appropriate in the circumstances. The Tribunal is
entitled to require better evidence from the parties, and to extrapolate from the evidence of
a group of representative complainants. However, there are no representative individual
plaintiffs in this complaint and no evidence regarding their experiences from which to
extrapolate on a principled and defensible basis. The Tribunal’s ability to compel further
evidence is also not helpful as the Caring Society has stated that it would be an impossible
task to obtain such evidence, and would be inconsistent with the fundamental nature of the
complaint. Compensating victims in this claim when they are not complainants would also
be contrary to the general objection to awarding compensation to non-complainants in
human rights complaints, as recognized by the Federal Court in Canada (Secretary of
State for External Affairs) v. Menghani, [1994] 2 FC 102 at para. 62).

[59] The AGC adds that the Commission’s submissions on compensation indicate that
this Tribunal declined to award compensation in claims where it would have been
impractical to have thousands of victims testify, acknowledging that it could not award
compensation ‘’en masse’’. (Public Service Alliance of Canada v. Canada Post
Corporation, 2005 CHRT 39 at para. 991 (although other aspects of this decision were
judicially reviewed, the Tribunal’s refusals to award compensation for pain and suffering, or
special compensation for wilful and reckless discrimination, were not).

[60] In making its findings, the Tribunal reproduced passages from another pay equity
case that had reached similar conclusions: Public Service Alliance of Canada v. Canada
(Treasury Board), 1998 CanLII 3995 (C.H.R.T.) at paras. 496-498. The Canada Post case
involved roughly 2,800 victims. The Treasury Board case involved roughly 50,000 victims).

[61] The AGC further contends that the Complaint is not a Class Action and the
remedies claimed by the parties resemble the sort of remedies that may be awarded by a
superior court of general jurisdiction rather than a Tribunal with a specific and limited
17

statutory mandate. A class action claim addressing the subject matter of this complaint has
been filed in the Federal Court.

[62] Also, the AGC submits that in Moore v. British Columbia (Education), 2012 SCC
61, [Moore]), the B.C. Human Rights Tribunal permitted the complainant to lead evidence
regarding systemic issues in a complaint of discrimination against an individual, in that
case an individual with dyslexia who claimed discrimination on the basis he was denied
access to education. The B.C. Tribunal relied on that evidence to award systemic
remedies. However, the Supreme Court of Canada concluded that the systemic remedies
are too far removed from the "complaint as framed by the Complainant' [emphasis in
original]. The Supreme Court upheld the individual remedies but set aside all of the
systemic orders because the remedy must flow from the claim. According to the AGC,
while the situation is reversed in this case, the same principle applies. The complainants
framed this complaint as one of systemic discrimination and are now bound by that choice.
Remedies in this case must be systemic, particularly because there is insufficient evidence
to determine appropriate compensation, if any, for individuals. The AGC adds that the lack
of evidence of harm suffered by individuals, and the apparent impossibility of obtaining it,
clearly indicates that this is not an appropriate claim in which to award individual
compensation.

[63] The AGC adds that the Act does not permit complaints on behalf of classes of
complainants, nor does it permit remedies to be awarded to those same classes. Section
40(1) of the Act permits individuals or groups of individuals to file a complaint with the
Commission while s.40(2) of the Act specifically empowers the Commission to decline to
consider complaints, such as this, that are filed without the consent of the actual victims.
The lack of an equivalent provision in the Act indicates that Parliament chose not to permit
class action-style complaints, and it certainly did not grant the Tribunal jurisdiction or
provide the tools needed to deal with class complaints.

[64] Furthermore, the AGC adds that given its lack of jurisdiction, the Tribunal should
not rely on principles from class action jurisprudence. Québec’s Tribunal des droits de la
personne, whose statute is similar to the Act, addressed the relationship between class
actions and human rights in the civil law context) in Commission des droits de la personne
18

et des droits de la jeunesse c. Québec (Procureur général, 2007 QCTDP 26 (CanLII). The
case concerned a settlement agreement reached by Quebec, the Quebec Commission,
and the teachers’ union. The parties encouraged the Tribunal to rely on class actions
principles and to approve the agreement despite opposition from a group of young
teachers who felt the deal was disadvantageous to them. The Tribunal declined to do so,
noting that a “class action is an extraordinary procedural vehicle that breaks with the
principle that no one can argue on behalf of another. That recourse can be exercised only
with the prior authorization of the court.” The Tribunal rejected the suggestion that class
actions principles could apply in the human rights context, noting that in class actions the
judge serves an important role in protecting “absent members”. Without these procedural
protections, the tribunal process should not be used to dispossess victims of their rights in
the dispute. The Tribunal also concluded that the procedural mechanism of class actions
is legislative, and can only be exercised where statutory conditions are met and therefore
cannot, be transplanted into Tribunal proceedings without legislative authority.

[65] The AGC also argues that while not binding on this Tribunal, the Quebec Tribunal’s
reasoning is compelling. Class action principles do not apply to human rights complaints
and should not be injected into them without legislative authority. Where courts are
empowered to consider class proceedings, they are equipped with the tools necessary to
do so. For example, Rule 334 of the Federal Court Rules, which governs class
proceedings in the Federal Court, empowers judges to review and certify class
proceedings, dictates the form for a certification order, provides a process for opting out of
the class and modifies other processes under the Rules to accommodate class
proceedings. The Rule notably requires a class representative, a person who is qualified to
act as plaintiff or applicant under the rules. In the absence of such a provision, the
Canadian Human Rights Tribunal is not empowered to address class complaints or to treat
complaints that purport to be on behalf of unidentified individual complainants like a class
claim.

[66] Furthermore, according to the AGC, The Tribunal does not have jurisdiction to
award individual compensation in complaints of systemic discrimination, particularly where,
as here, there are no individual complainants. The terms of the Act and the jurisprudence
19

of both this Tribunal and the Federal Courts clearly indicate that paying compensation to
the complainant organizations or to non-complainant victims would exceed the Tribunal’s
jurisdiction. Compensation can only be paid where there is evidence of harm suffered by
complainant individuals and should only be paid where it advances the goal of ending
discriminatory practices and eliminating discrimination.

[67] The AGC contends there is no legal basis for compensating the Complainants. The
Tribunal was created by the Act and its significant powers to compensate victims of
discrimination can only be exercised in accordance with the Act. The Tribunal’s task is to
adjudicate the claim before it. Its inquiry must focus on the complaint and any remedies
ordered must flow from the complaint. The requirements of s. 53(2)(e) or 53(3) must be
satisfied for the Tribunal to award compensation under the Act.

[68] In regards to pain and suffering, the AGC adds that Section 53(2)(e) of the Act
grants the Tribunal jurisdiction to award up to $20,000 to “the victim” of discrimination for
any pain and suffering they experienced as a result of the discriminatory practice.
However, the complainant organizations are not victims of the discrimination and did not
experience pain and suffering as a result of it. The evidence presented to the Tribunal by
the complainants did not speak to “either physical or mental manifestations of stress
caused by the hurt feelings or loss of respect as a result of the alleged discriminatory
practice.” Organizations cannot experience pain and suffering and there is, therefore, no
need to “redress the effects of the discriminatory practices’’ with regards to the
complainants. Redressing the discrimination found was necessary in this case, but the
Tribunal’s previous orders accomplished this goal.

[69] In regards to pain and suffering, the AGC adds that for discrimination to be found to
be willful and reckless, and therefore compensable under s. 53(3) of the Act, evidence is
required of a measure of intent or of behavior that is devoid of caution or without regard to
the consequences of that behavior. Compensation for willful and reckless discrimination is
justified where the Tribunal finds that a party has failed to comply with Tribunal orders in
previous matters intended to prevent a repetition of similar events from recurring. As with
compensation for pain and suffering, compensation for willful and reckless discrimination
can only be paid to “victims” of discrimination.” The complainant organizations were not
20

victims of willful and reckless discrimination. Furthermore, there is no evidence of a


consistent failure to comply with orders.

[70] The AGC submits this claim raises novel issues. There were no orders requiring the
Government to address these issues before the Tribunal’s first decision in this matter. The
Tribunal’s decisions in this matter since 2017 are based on the findings and reasoning of
the initial decision and are intended to: “provide additional guidance to the parties”. They
do not demonstrate that Canada has acted without caution or regard to the consequences
of its behavior. Concerns about the adequacy of the Government's response to studies
and reports in the past do not provide a basis for awarding compensation under s. 53(3).
Canada’s funding for child welfare services has consistently changed to address shifts in
social work practice and the increasing cost of providing family services. Examples of
these changes include the redesign of the funding formula to add an additional funding
stream for prevention services and Bill C-92 currently before the House of Commons.
Since the AGC’s submissions, Bill C-92 received Royal assent.

[71] The AGC argues this Tribunal understands the limitations of its remedial
jurisdiction. In its decisions in this matter, the Tribunal has shown a nuanced
understanding of both its powers and of the limitations of its remedial jurisdiction. The
Tribunal should follow its own guidance in deciding the issue of compensation in this case.
In 2016 CHRT 2, the Tribunal concluded that its remedial discretion must be exercised
reasonably and on a principled basis considering the link between the discriminatory
practice and the loss claimed, the particular circumstances of the case and the evidence
presented. In reaching its conclusion, it stated that the goal of issuing an order is to
eliminate discrimination and not to punish the government.

[72] Moreover, in 2016 CHRT 16, in declining to order the Government to pay to transfer
recordings of the Tribunal hearings into a publicly accessible format at the request of the
Aboriginal Persons Television Network (the “APTN”), the Tribunal acknowledged the
importance of the link between the discriminatory practice and the loss claimed. The AGC
submits that while the Tribunal was respectful of the APTN's mission and recognized the
public interest in the recordings, the fact that APTN was neither a party nor a victim meant
that the remedial request was not linked to the discrimination and was, therefore, denied.
21

[73] Also, according to the AGC, the Federal Court of Appeal has recognized that
structural and systemic remedies are required in complaints of systemic discrimination. In
Re: C.N.R. and Canadian Human Rights Commission, 1985 CanLII 3179 (FCA) (C.N.R.),
the Court found that compensation is limited to victims which made it “impossible, or in any
event inappropriate, to apply it in cases of group or systemic discrimination” where, as
here “by the nature of things individual victims are not always readily identifiable”.

[74] The AGC further submits that remedies in claims of systemic discrimination should
seek to prevent the same or similar discriminatory practices from occurring in the future in
contrast with remedies for individual victims of discrimination which seek to return the
victim to the position they would have been in without the discrimination. As human rights
lawyers Brodsky, Day and Kelly state in their article written in support of this complaint:
where the breach of a human rights obligation raises structural or systemic issues --- such
as longstanding policy practices that discriminate against indigenous women - the
underlying violations must be addressed at the structural or systemic level."

[75] The AGC also argues that any compensation must be paid directly to victims of the
discrimination. There is no legal basis for the Caring Society's requests that compensation
for willful and reckless discrimination be paid into a trust fund that will be used to access
services including: language and cultural programs, family reunification programs,
counselling, health and wellness programs, and education programs. Compensation is
only payable to victims under the term of the Act and paying compensation to an
organization on behalf of individual victims could bar that individual from vindicating their
own rights before the Tribunal and obtaining compensation. It may also prejudice their
recovery in a class action claim as any damages awarded to the victims would be offset
against the compensation already awarded to the organization by the Tribunal.

[76] Furthermore, the AGC contends that compensation is inappropriate in claims


alleging breaches of Jordan’s Principle in light of the fact there is no basis to award
compensation under the Act to either the complainant organizations or non-complainant
individuals for alleged breaches of Jordan’s Principle. As the Commission notes in its
submissions, where Canada has implemented policies that satisfactorily address the
discrimination, no further orders are required.
22

[77] The AGC submits there is no basis to find that the government discriminated
willfully or recklessly in this claim. The Tribunal in the Johnstone decision, relied on by the
Caring Society, justified its award of compensation under s. 53(3) of the Act by pointing to
disregard for a prior Tribunal decision that addressed the same points and the
government's reliance arbitrary and unwritten policies, among other things, neither of
which are the case here.

[78] According to the AGC, the Tribunal has asked whether the expert panel proposed
by the AFN is feasible and legal or whether it would be more appropriate for the parties to
form a committee (potentially including COO and NAN) to refer individual victims to the
Tribunal for compensation. The AGC submits neither of these proposals is feasible or
legal. The Tribunal cannot delegate its authority to order remedies to an expert panel and
it would not be appropriate to ignore the nature of the complaint by awarding
compensation to victims who are not complainants in a claim of systemic discrimination.
There are no individual complainants in this claim and little evidence of the harm suffered
by victims from which the Tribunal can extrapolate. It would also offend the general
objection against awarding compensation to non-complainants in human rights matters.

[79] The Caring Society requests that compensation be paid in to an independent trust
similar to the ones established under the IRSSA and the AFN is requesting payment of
compensation directly to victims and their families. The AGC says the Tribunal should not,
and is not permitted in law, to take either of the approaches proposed by the complainants.
As the Tribunal question notes, the Indian Residential Schools settlement is the result of
agreement between the parties in settling a class action and the independent trust was not
imposed by a Court or tribunal.

[80] Finally, according to the AGC, compensation cannot be paid to victims or their
families through this process because there are no victims or family-member complainants
in this claim.

[81] The Commission while not making submissions on the remedies sought made
helpful legal arguments on the issue of compensation and in response to the AGC’s legal
position on this issue which will be summarized here. The Commission agrees that any
23

award of financial compensation to victims must be supported by evidence. However, it is


important to remember that s. 50(3)(c) of the CHRA expressly allows the Tribunal to
“receive and accept any evidence and other information, whether on oath or by affidavit or
otherwise, that the member or panel sees fit, whether or not that evidence or information is
or would be available in a court of law.” As a result, in making decisions under the CHRA,
it is open to the Tribunal to rely on hearsay or other information, alongside any direct
testimony from the parties, victims or other witnesses (emphasis ours).

[82] The Commission further submits that awards for pain and suffering under the
CHRA are compensation for the loss of one’s right to be free from discrimination, and for
the experience of victimization. The award rightly includes compensation for harm to a
victim’s dignity interests. The specific amounts to be ordered turn in large part on the
seriousness of the psychological impacts that the discriminatory practices have had upon
the victim. Medical evidence is not needed in order to claim compensation for pain and
suffering, although such evidence may be helpful in determining the amount, where it
exists.

[83] Furthermore, the Commission submits the Tribunal has held that a complainant’s
young age and vulnerability are relevant considerations when deciding the quantum of an
award for pain and suffering, at least in the context of sexual harassment. The
Commission agrees, and submits that vulnerability of the victim should be a relevant
consideration in any context, especially where children are involved. Such a finding would
be consistent with (i) approaches taken by human rights decision-makers interpreting
analogous remedial provisions in other jurisdictions, and (ii) Supreme Court of Canada
case law recognizing that children are a highly vulnerable group.

[84] According to the Commission, the Federal Court of Appeal has confirmed that
where the Tribunal finds evidence that a discriminatory practice caused pain and suffering,
compensation should follow under s. 53(2)(e) of the CHRA.

[85] Like all remedies under the CHRA, awards for pain and suffering must be tied to
the evidence, be proportionate to the nature of the infringement, and respect the wording
of the statute. Among other things, this requires that awards for pain and suffering fit
24

within the $20,000 cap set out in s. 53(2)(e) of the CHRA. At the same time, as the
Ontario Court of Appeal has cautioned in the context of equivalent head of compensation
under the Ontario Human Rights Code, “… Human Rights Tribunals must ensure that the
quantum of general damages is not set too low, since doing so would trivialize the social
importance of the [Code] by effectively setting a ‘licence fee’ to discriminate’’.

[86] The Commission adds that the Court of Appeal noted in Lemire v. Canadian
Human Rights Commission, 2014 FCA 18, (Lemire), the wording of s. 53(3) of the CHRA
does not require proof of loss by a victim. In the context of the former hate speech
prohibition under the CHRA, awards of special compensation for wilful or reckless conduct
were said to compensate individuals identified in the hate speech for the damage
“presumptively caused” to their sense of human dignity and belonging to the community at
large.

[87] Additionally, the Commission argues that Sections 53(2)(e) and 53(3) of the CHRA
each allow the Tribunal to order that a respondent pay financial compensation to the
“victim of the discriminatory practice.”

[88] Also, the Commission advances the argument that in most human rights
proceedings, there is one complainant who is also the alleged victim of the discriminatory
practice. However, this is not always the case. The CHRA clearly contemplates that a
complaint may be filed by someone who does not claim to have been a victim of the
discriminatory practice alleged in the complaint. In such circumstances, s. 40(2) expressly
gives the Commission a discretion to refuse to deal with the complaint, unless the alleged
victim consents. The existence of this discretion shows Parliament’s understanding that
“victims” and “complainants” may be different persons.

[89] In light of this potential under the CHRA, the Commission submits that it is within
the discretion of the Tribunal to award financial remedies to victims of discriminatory
practices, and to determine who those victims are – always having regard to the evidence
before it. For example, if the specific identities of victims are known to the Tribunal, it
might order payments directly to those victims. If the Tribunal does not have evidence of
the specific identities of the victims, but has enough evidence to believe that the parties
25

would be capable of identifying them, it might make orders that (i) describe the class of
victims, (ii) give the parties time to collaborate to identify the victims, and (iii) retain the
Tribunal’s jurisdiction to oversee the process.

[90] The Commission further submits that in Walden et al. v. Attorney General of
Canada (2010), the Federal Court (i) took note of this broad discretion with respect to the
admissibility of evidence, and (ii) held that the Tribunal does not necessarily need to hear
testimony from all alleged victims of discrimination in order to compensate them for pain
and suffering. Instead, the Court noted that it could be open to the Tribunal in an
appropriate case to rely on hearsay evidence from some individuals to determine the pain
and suffering of a group.

[91] The Commission notes that in questions posed to the parties regarding
compensation, the Panel Chair appears to have raised concerns about having the Tribunal
order the creation of a panel that would effectively be making decisions about appropriate
remedies under the CHRA. With the greatest of respect to the AFN, the Commission
shares those concerns. Parliament has assigned the responsibility of deciding
compensation to the specialized Tribunal, created under the CHRA. Nothing in the statute
authorizes the Tribunal to sub-delegate that responsibility to another body. Without
statutory authority, any sub-delegation of this kind would likely be contrary to principles of
administrative law.

[92] The Commission further notes that in her questions, the Panel Chair asked if it
might instead be preferable to have an expert panel do the preliminary work of identifying
victims, and present their circumstances to the Tribunal for determination. If the Tribunal is
inclined to go in this direction, the Commission simply observes that the Tribunal’s
remedial powers only allow it to make orders against the person who infringed the CHRA
here, Canada. As a result, any order regarding an expert panel should not purport to bind
the Commission or any other non-respondent to participate on an expert panel.

[93] Speaking only for itself, the Commission has concerns that it would not have
sufficient resources to allow for timely and effective participation in an expert panel
procedure of the kind under discussion. An order that allows for the Commission’s
26

participation, but does not require it, would allow the Commission to consider the resource
implications of any process that may be put in place, and advise at that time of its ability to
participate.

V. The Tribunal’s authority under the Act and the nature of the claim

[94] The Tribunal’s authority to award remedies such as compensation for pain and
suffering and special damages for wilful and reckless conduct is found in the CHRA
characterized by the Supreme Court of Canada on numerous occasions, to be quasi-
constitutional legislation (see for example Robichaud v. Canada (Treasury Board), 1987
CanLII 73 (SCC), [1987] 2 SCR 84 at pp. 89-90 [Robichaud]; Canada (House of
Commons) v. Vaid, 2005 SCC 30 (CanLII) at para. 81; and Canada (Canadian Human
Rights Commission) v. Canada (Attorney General), 2011 SCC 53 (CanLII) at para. 62
[Mowat]).

[95] The principle that the CHRA is paramount was first enunciated in the Insurance
Corporation of British Columbia v. Heerspink 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145,
158, and further articulated by the Supreme Court of Canada in Winnipeg School Division
No. 1 v. Craton 1985 CanLII 48 (SCC), [1985] 2 S.C.R. 150, at p. 156 where the court
stated:

[96] Human rights legislation is of a special nature and declares public policy regarding
matters of general concern. It is not constitutional in nature in the sense that it may not be
altered, amended, or repealed by the Legislature. It is, however, of such a nature that it
may not be altered, amended or appealed, nor may exceptions be created to its provisions
save by clear legislative pronouncement. (at p. 577) (see also 2018 CHRT 4 at, para. 29).

It is through the lens of the CHRA and Parliament’s intent that remedies
must be considered (…) (see 2018 CHRT 4 at, para. 30).

[97] It is also important to reiterate that the CHRA gives rise to rights of vital importance.
Those rights must be given full recognition and effect through the Act. In crafting remedies
under the CHRA, the Tribunal’s powers under section 53(2) must be given such fair, large
and liberal interpretation as will best ensure the objects of the Act are obtained. Applying a
27

purposive approach, remedies under the CHRA should be effective in promoting the right
being protected and meaningful in vindicating the rights and freedoms of the victim of
discrimination (see CN v. Canada (Canadian Human Rights Commission), 1987 CanLII
109 (SCC), [1987] 1 SCR 1114 at p. 1134; and, in Doucet-Boudreau v. Nova Scotia
(Minister of Education), 2003 SCC 62 at, paras. 25 and 55), (see also 2016 CHRT 2 at,
para.469).

[98] Moreover, the Tribunal’s broad remedial discretion is to be exercised on a


principled and reasonable basis, taking into account the circumstances of the case, the
link between the discriminatory practices and the losses claimed, and the evidence
presented. (see Tanner v. Gambler First Nation, 2015 CHRT 19 at para. 161 (citing
Chopra v. Canada (Attorney General), 2007 FCA 268 (CanLII), at para. 37; and Hughes v.
Elections Canada, 2010 CHRT 4 at para. 50).

[99] When the Tribunal analyzes the claim, it reviews the complaint and also the
elements contained in the Statement of Particulars in accordance with rule 6(1)d) of the
Tribunal’s rules of procedure (see Lindor c. Travaux publics et Services gouvernementaux
Canada, 2012 TCDP 14 at para.4, Translation).

[100] In fact, when the Tribunal examines the complaint, it does so in light of the
principles above mentioned and in a flexible and non-formalistic manner:

‘’Complaint forms are not to be perused in the same manner as criminal


indictments’’. (Translation, see Canada (Procureur général) c. Robinson,
[1994] 3 CF 228 (CA) cited in Lindor 2012 TCDP 14 at para.22).

« Les formules de plainte ne doivent pas être scrutées de la même façon


qu'un acte d'accusation en matière criminelle. »

[101] Furthermore, this Tribunal has determined that the complaint is but one element of
the claim, a first step therefore, the Tribunal must look beyond the complaint form to
determine the nature of the claim:

Pursuant to Rule 6(1) of the Tribunal’s Rules of Procedure (03-05-04) (the


“Rules”), each party is to serve and file a Statement of Particulars (“SOP”)
setting out, among other things,
28

(a) the material facts that the party seeks to prove in support of its case; (b)
its position on the legal issues raised by the case (...) (see
Kanagasabapathy v. Air Canada 2013 CHRT 7, at para.3).

[102] It is important to remember that the original complaint does not serve the purposes
of a pleading (Casler v. Canadian National Railway, 2017 CHRT 6 at para. 9 [Casler]; see
also Gaucher v. Canadian Armed Forces, 2005 CHRT 1 at para. 10 [Gaucher]). Moreover,
as explained in Casler:

. . [I]t must be kept in mind that filing a complaint is the first step in the
complaint resolution process under the Act. As the Tribunal stated in
Gaucher, at paragraph 11, “[i]t is inevitable that new facts and circumstances
will often come to light in the course of the investigation. It follows that
complaints are open to refinement”. As explained in Gaucher and Casler,
cited above, the complaint filed with the Commission only provides a
synopsis; it will essentially become clearer during the course of the process.
The conditions for the hearing are defined in the Statement of Particulars.
(see also Polhill v. Keeseekoowenin, see also, First Nation 2017 CHRT 34
at, paras. 34 and 36).

[103] It is useful to look at the claim in this case which in this case includes the complaint,
the Statement of Particulars and the specific facts of the case to respond to the AGC’s
argument that this is a systemic claim and not suited for awards of individual remedies.

[104] The complaint form in this case alleges that: ‘’the formula drastically underfunds
primary, secondary and tertiary child maltreatment intervention services, including least
disruptive measures’’. These services are vital to ensuring the First Nations children have
the same chance to stay safely at home with support services as other children in Canada
(see Complaint form at, pages 2-3).

[105] The Panel already found in past rulings that it is the First Nations children who
suffer and are adversely impacted by the underfunding of prevention services within the
federal funding formula. The Panel considered the claim including the complaint,
Statement of Particulars as well as the entire evidentiary record, arguments, etc. to arrive
at its findings. As exemplified by the wording above, the complaint specifically identifies
First Nations children and the AFN and the Caring Society advanced the complaint on
their behalf.
29

[106] Furthermore, the Statement of Particulars of the Caring Society and the AFN of
January 29, 2013: “request pain and suffering and special compensation remedies under
section 53(2) (e) of the CHRA and f…’’ (see page 7 at para.21 reproduced below):

Relief requested:

Pursuant to sections 53(2)(d), (e) and (f), requiring compensation and


special compensation in the form of payment of one hundred and twelve
million dollars into a trust fund to be administered by FNCFCS and to be
used to: (a) As compensation, subject to the limits provided in sections
53(3)(e) and (f) for each First Nation person who was removed from his or
her home since 1989 and thereby experienced pain and suffering;

[107] In this case, the fact that there is no section 53 (2) (f) in the CHRA but rather a
paragraph 3 is a small error that does not change the nature of the requested remedies.
Moreover, this error was later corrected in the Caring Society’s final submissions.

[108] It is clear from reviewing the Complainants’ Statement of Particulars that they were
seeking compensation from the beginning and also before the start of the hearing on the
merits. The Tribunal requests parties to prepare statements of particulars in order to detail
the claim given that the complaint form is short and cannot possibly contain all the
elements of the claim. It also is a fairness and natural justice instrument permitting parties
to know their opponents’ theory of the cause in advance in order to prepare their case.
Sometimes, parties also present motions seeking to have allegations contained in the
Statement of Particulars quashed in order to prevent the other party from presenting
evidence on the issue.

[109] The AGC responded to these compensation allegations and requests both in its
updated Statement of Particulars of February 15, 2013 demonstrating it was well aware
that the complainants the Caring Society and the AFN were seeking remedies for pain and
suffering and for special compensation for individual children as part of their claim.

[110] As shown by the AGC’s position on the relief requested by the Complainants:

With respect to the relief sought in paragraphs 21(2), 21(3) (insofar as the
relief requested in 21(3) seeks the establishment of a trust fund to provide
compensation to certain unnamed First Nations persons for pain and
suffering and for certain services and 21(5) of the Complainants Statement
30

of particulars, the requested relief is beyond the jurisdiction of the Tribunal


(...) No compensation should be awarded under section 53(2)(e) of
Canadian Human Rights Act as neither Complainant meet the definition of
victim within the section. In the alternative, any compensation awarded
under s.53(2)(e) should be limited to a maximum of $40,000 (calculated as
follows: the maximum available, $20,000, multiplied by the number of
Complainants, two, equals $40,000). (See AGC particulars at page 15, para.
64 and 66).

[111] The Panel finds this demonstrates that the AGC was fully aware that compensation
remedy for victims/survivors who were not the Complainants was part of the
Complainants’ claim before the Tribunal. Moreover, it admitted that compensation was an
issue to be determined by the Tribunal in a Consultation Protocol signed in these
proceedings by all parties and by Minister Jane Philpott, as she then was, on behalf of
Canada:

WHEREAS, the Tribunal retained jurisdiction to ensure the implementation


of its Decision, and subsequently directed that implementation be done in
three steps, namely: (1) immediate relief; (2) mid to long term relief; and (3)
compensation, and has reserved its ruling regarding the Complainants’
motion for an award against Canada in relation to the costs of its obstruction
of the Tribunal’s process in relation to document disclosure and production
(see Consultation Protocol, signed March 2, 2018 at page. 2)

The Tribunal has directed that the implementation of its Decision be done in
three steps, namely: (1) immediate relief, (2) mid to long term relief and (3)
compensation. Canada commits to consult in good faith with the
Complainants, the Commission and Interested Parties on all the three steps,
to the extent of their respective interests and mandates. (see Consultation
Protocol, signed March 2, 2018 at, para.4, page. 7)

VI. Victims under the CHRA

[112] Nothing in the Act suggests that the Tribunal lacks jurisdiction and cannot order
remedies benefitting victims who are not Complainants. The Panel disagrees with the
AGC’s argument and interpretation including of section 40 paras. (1) and (2) summarized
above. Section 40 (1) and (2) is reproduced here:

40 (1) Subject to subsections (5) and (7), any individual or group of


individuals having reasonable grounds for believing that a person is
31

engaging or has engaged in a discriminatory practice may file with the


Commission a complaint in a form acceptable to the Commission.

Consent of victim

(2) If a complaint is made by someone other than the individual who is


alleged to be the victim of the discriminatory practice to which the complaint
relates, the Commission may refuse to deal with the complaint unless the
alleged victim consents thereto.

[113] This wording suggests that complaints on behalf of victims made by representatives
can occur and the Commission has the discretion to refuse to deal with the complaint if the
victim does not consent.

[114] In this case, the Commission referred the complaint to the Tribunal and does not
oppose the remedy sought on behalf of victims.

[115] Consequently, the Panel agrees with the Commission that the CHRA clearly
contemplates that a complaint may be filed by someone who does not claim to have been
a victim of the discriminatory practice alleged in the complaint. In such circumstances, s.
40(2) expressly gives the Commission a discretion to refuse to deal with the complaint,
unless the alleged victim consents. The existence of this discretion shows Parliament’s
understanding that “victims” and “complainants” may be different persons.

[116] Additionally, the Federal Court of Appeal’s decision in Singh (Re), [1989] 1 F.C. 430
at 442, discussed the meaning of the term victim where the Court stated:

The question as to who is the “victim” of an alleged discriminatory practice is


almost wholly one of fact. Human rights legislation does not look so much to
the intent of discriminatory practices as to their effect. That effect is by no
means limited to the alleged “target” of the discrimination and it is entirely
conceivable that a discriminatory practice may have consequences that are
sufficiently direct and immediate to justify qualifying as a “victim” thereof
persons who were never within the contemplation or intent of its author.

[117] The Tribunal has already distinguished complainants from victims who are not
complainants within the CHRA framework:

On the third ground, I am satisfied that the proceeding will have an impact
on the interests of PIPSC’s members. PIPSC is the bargaining agent for the
Complainants and non-complainant Medical Adjudicators who may be
32

deemed as “victims” under the CHRA and entitled to compensation. On this


basis alone, I find that PIPSC has an interest in this phase of the
proceeding. (see Walden et al. v. Attorney General of Canada (representing
the Treasury Board of Canada and Human Resources and Skills
Development Canada), 2011 CHRT 19 at, para.25).

[118] This speaks against the AGC’s argument that the Tribunal cannot make awards to
individuals that are not complainants and to the other AGC’s argument that the Tribunal
has no jurisdiction to award remedies for a “group” of victims represented by an
organization.

[119] In Walden, both the Tribunal’s liability and remedy decisions were judicially
reviewed, unsuccessfully in the case of the former and successfully in the latter. The
remedy matter was referred back on two issues to be resolved: one involving
compensation for pain and suffering; and the other, involving compensation for wage loss
including benefit. The parties have negotiated a settlement on the pain and suffering
component and have asked the Tribunal for a Consent Order disposing of this issue (see
[Walden v. Canada (Social Development), 2007 CHRT 56 (CanLII), at para.3).

[120] While the end result in that case was a consent order on pain and suffering
remedies, the Tribunal could not make orders that would fall outside its jurisdiction under
the Act.

[121] The AGC relies also on a Federal Court case to support its position that
compensating victims in this claim when they are not complainants would also be contrary
to the general objection to awarding compensation to non-complainants in human rights
complaints, as recognized by the Federal Court in Canada (Secretary of State for External
Affairs) v. Menghani, [1994] 2 FC 102 at para. 62.

[122] The Panel disagrees with the AGC’s interpretation and application of the Federal
Court decision to our case. The analysis, the factual matrix and the findings from the
Federal Court are different from the case at hand. The Panel finds it does not support the
AGC’s position to bar the Tribunal from awarding compensation to non-complainant
victims in this case.
33

[123] This case was always about children as exemplified by the claim written in the
complaint and in the Statement of Particulars and the Tribunal’s decisions. Moreover, the
AGC is aware that the Tribunal views this case is about children. What is more, the Panel
agrees that AFN and the Caring Society filed the complaint on behalf of a representative
group who are identifiable by specific characteristics if not by name. Furthermore, the
Panel believes it is important to consider the nature of this case where the
victims/survivors are part of a group composed of vulnerable First Nations children.

[124] While there are other forums available for filing representative actions, the AFN
stated that Tribunal was carefully chosen in this case due to the nature of the claim, but,
also due to the means of redress available under the CHRA for members of a vulnerable
group on whose behalf the AFN has advanced a case of discrimination contrary to the Act.

VII. Pain and suffering analysis

[125] Once it is established that discrimination or a loss has been suffered, the Tribunal
must consider whether an order is appropriate (see s. 53(2) of the CHRA. In this regard,
the Tribunal has the duty to assess the need for orders on the material before it; or, it can
refer the issue back to the parties to prepare better evidence on what an appropriate order
should be (see Canadian Human Rights Commission v. Canada (Attorney General), 2010
FC 1135 (CanLII) at paras. 61 and 67, aff’d 2011 FCA 202 (CanLII) [“Walden”]). In
determining the present motions, this is the situation in which the Panel finds itself. (see
2017 CHRT 14 (CanLII) at para. 27), (see 2019 CHRT 7 at, para.47). Therefore, in the
presence of sufficient evidence and a remedy that flows from the claim, the Tribunal may
make the orders it finds appropriate.

[126] In a recent Tribunal decision, Lafrenière v. Via Rail Canada Inc., 2019 CHRT 16, at
para.193 Member Perreault wrote about the pain and suffering award under section. 53(2)
(e) of the CHRA:

However, $20,000 is the maximum that may be awarded under the


legislation and it is usually awarded by the Tribunal in more serious cases,
i.e. when the scope and duration of the Complainant’s suffering from the
discriminatory practice justify the full amount.
34

[127] The Federal Court of Appeal has confirmed that where the Tribunal finds evidence
that a discriminatory practice caused pain and suffering, compensation should follow
under s. 53(2)(e) of the CHRA (see Jane Doe v. Canada (Attorney General), 2018 FCA
183 (Jane Doe), at para. 29, citing (among others): Grant v. Manitoba Telecom Services
Inc., 2012 CHRT 10 at para. 115); and Alizadeh-Ebadi v. Manitoba Telecom Services Inc.,
2017 CHRT 36 at para. 213).

[128] Furthermore, when someone endures pain and suffering, there is no amount of
money that can remove that pain and suffering from the Complainant. Moral pain related
to discrimination (…) varies from one individual to another. Psychological scars often take
a long time to heal and can affect a person’s self-worth. From the point of view of the
person that suffered discrimination, large amounts of money should be granted to reflect
what they lived through and to provide justice. This being said, when evidence establishes
pain and suffering an attempt to compensate for it must be made. However, $20,000 is the
maximum amount that the Tribunal can award under section 53(2)(e) and the Tribunal only
awards the maximum amount in the most egregious of circumstances (see Grant v.
Manitoba Telecom Services Inc., 2012 CHRT 10 at, para.115 recently cited in Jane Doe,
at, para.29).

[129] The pain and suffering remedy sought as part of this ruling is found at para. 53 (2)
(e) of the CHRA. Section 53 (2) reads as follows:

Complaint substantiated

(2) If at the conclusion of the inquiry the member or panel finds that the
complaint is substantiated, the member or panel may, subject to section 54,
make an order against the person found to be engaging or to have engaged
in the discriminatory practice and include in the order any of the following
terms that the member or panel considers appropriate:

(a) that the person cease the discriminatory practice and take measures, in
consultation with the Commission on the general purposes of the measures,
to redress the practice or to prevent the same or a similar practice from
occurring in future, including

(i) the adoption of a special program, plan or arrangement referred to in


subsection 16(1), or
35

(ii) making an application for approval and implementing a plan under


section 17;

(b) that the person make available to the victim of the discriminatory
practice, on the first reasonable occasion, the rights, opportunities or
privileges that are being or were denied the victim as a result of the practice;

(c) that the person compensate the victim for any or all of the wages that the
victim was deprived of and for any expenses incurred by the victim as a
result of the discriminatory practice;

(d) that the person compensate the victim for any or all additional costs of
obtaining alternative goods, services, facilities or accommodation and for
any expenses incurred by the victim as a result of the discriminatory
practice; and

(e) that the person compensate the victim, by an amount not exceeding
twenty thousand dollars, for any pain and suffering that the victim
experienced as a result of the discriminatory practice.

[130] Section 53 imposes a logical requirement for any award of remedies that is, the
remedy should flow from a finding that the complaint is substantiated. If this is the case, an
array of remedies is available to the victim of the discriminatory practice. The wording of
section 53(2) is unambiguous and allows the victim of the discriminatory practice to obtain
any remedies listed in section 53 as the member or panel finds appropriate: ‘’(..) and
include in the order any of the following terms that the member or panel considers
appropriate’’. It is clear that the language of the CHRA does not prevent awards of multiple
remedies even if systemic remedies have been ordered.

[131] The AGC’s argument that systemic discrimination requires systemic remedies is
correct. However, the AGC’s argument that it precludes other awards of remedies as the
Panel deems appropriate in light of the facts and the evidence before the Tribunal is
incorrect.

[132] The way to determine the issue is to look at the Statute first:

The basic rule of statutory interpretation is that “the words of an Act are to be
read in their entire context, in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament” (Elmer Driedger, Construction of Statutes, 2nd ed.
(Toronto: Butterworths, 1983), at p. 87; see also Rizzo & Rizzo Shoes Ltd.
36

(Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27, at para. 21, see also First
Nations Child & Family Caring Society of Canada et al. v. Attorney General
of Canada (for the Minister of Indian and Northern Affairs Canada), 2015
CHRT 14 at, para.12).

[133] The special nature of human rights legislation is also taken into account in its
interpretation:

Human rights legislation is intended to give rise, amongst other things, to


individual rights of vital importance, rights capable of enforcement, in the
final analysis, in a court of law. I recognize that in the construction of such
legislation the words of the Act must be given their plain meaning, but it is
equally important that the rights enunciated be given their full recognition
and effect. We should not search for ways and means to minimize those
rights and to enfeeble their proper impact. Although it may seem
commonplace, it may be wise to remind ourselves of the statutory guidance
given by the federal Interpretation Act which asserts that statutes are
deemed to be remedial and are thus to be given such fair, large and liberal
interpretation as will best ensure that their objects are attained. First Nations
Child & Family Caring Society of Canada et al. v. Attorney General of
Canada (see CN v. Canada (Canadian Human Rights Commission), 1987
CanLII 109 (SCC), [1987] 1 SCR 1114, at, p. 1134) cited in 2015 CHRT 14
at, para.13).

[134] Consequently, analyzing the specific facts of the case and weighing the accepted
evidence in the Tribunal record is of paramount importance.

Indeed, the Federal Court of Appeal recently described the exercise of


statutory interpretation:

To discern the meaning of “compensate”, the Board is therefore required to


conduct an exercise in statutory interpretation. For the interpretation to be
reasonable, the Board is obliged to ascertain the intent of Parliament by
reading paragraph 53(2)(e) in its entire context, according to the
grammatical and ordinary meaning of its text, understood harmoniously with
the object and scheme of the Act. The Board must also be mindful that
human rights legislation is to be construed liberally and purposively so that
protected rights are given full recognition and effect. (see Jane Doe v.
Canada (Attorney General), 2018 FCA 183 at, paras.23).

[135] The proper legal analysis is fair, large and liberal and must advance the Act's
objective and account for the need to uphold the human rights it seeks to protect. As
mentioned above, one should not search for ways and means to minimize those rights and
to enfeeble their proper impact.
37

[136] The AGC relies on the Moore case to support its assertion that individual remedies
cannot be awarded in a systemic case. However, the Panel disagrees with the AGC’s
interpretation of this case.

[137] The Supreme Court decision in Moore did not say that both systemic and individual
remedies cannot be awarded to victims of discriminatory practices rather it emphasizes
the need for the remedy to be connected to the claim and the need for an evidentiary basis
to make orders. The case of Jeffery Moore was a complaint of individual discrimination
where the Tribunal went beyond the claim and made findings of systemic discrimination.
This is the issue discussed by the Supreme Court which described the case as follows:

This case is about the education of Jeffrey Moore, a child with a severe
learning disability who claims that he was discriminated against because the
intense remedial instruction he needed in his early school years for his
dyslexia was not available in the public-school system. Based on the
recommendation of a school psychologist, Jeffrey’s parents enrolled him in
specialized private schools in Grade 4 and paid the necessary tuition. The
remedial instruction he received was successful and his reading ability
improved significantly.

[138] Jeffrey’s father, Frederick Moore, filed a human rights complaint against the School
District and the British Columbia Ministry of Education alleging that Jeffrey had been
discriminated against because of his disability and had been denied a “service (…)
customarily available to the public”, contrary to s. 8 of the Human Rights Code, R.S.B.C.
1996, c. 210 (“Code”). (see Moore at paras. 1-2).

[139] Additionally, the Supreme Court discussed the remedy as follows: ‘’But the remedy
must flow from the claim. In this case, the claim was made on behalf of Jeffrey, and the
evidence giving concrete support to the claim all centered on him. While the Tribunal was
certainly entitled to consider systemic evidence in order to determine whether Jeffrey had
suffered discrimination, it was unnecessary for it to hold an extensive inquiry into the
precise format of the provincial funding mechanism or the entire provincial administration
of special education in order to determine whether Jeffrey was discriminated against. The
Tribunal, with great respect, is an adjudicator of the particular claim that is before it, not a
Royal Commission’’. (see Moore at paras.64).
38

[140] The case at hand on the contrary, is one of systemic racial discrimination as
admitted by Canada in its oral and written submissions on compensation and, also a case
where the Tribunal found that the system caused adverse impacts on First Nations
children and their families.

[141] It is worth mentioning that the Decision on the merits begins with this important
finding: This decision concerns children. More precisely, it is about how the past and
current child welfare practices in First Nations communities on reserves, across
Canada, have impacted and continue to impact First Nations children, their families
and their communities. (see 2016 CHRT 2, at para.1).

[142] In claiming there is no evidence in the record to support compensation to individual


victims who are not complainant in this case, the Panel finds that the AGC does not
consider section 50 (3)c of the CHRA: ‘’(c) subject to subsections (4) and (5), receive and
accept any evidence and other information, whether on oath or by affidavit or otherwise,
that the member or panel sees fit, whether or not that evidence or information is or would
be admissible in a court of law’’. The only limitation in relation to evidence is found at
section 50 (4) of the CHRA, the member or panel may not admit or accept as evidence
anything that would be inadmissible in a court by reason of any privilege under the law of
evidence.

[143] The word “may” suggests that this limitation is imposed or not at the discretion of
the Member or Panel.

[144] The Panel finds it is unreasonable to require vulnerable children to testify about the
harms done to them as a result of the systemic racial discrimination especially when
reliable hearsay evidence such as expert reports, reliable affidavits and testimonies of
adults speaking on behalf of children and official government documents supports it. The
AGC in making its submissions does not consider the Tribunal’s findings in 2016 accepting
numerous findings in reliable reports as its own. The AGC omits to consider the Tribunal’s
findings of the children's suffering in past and unchallenged decisions in this case.

[145] In Canada (Social Development) v. Canada (Human Rights Commission), 2011


FCA 202 at para.73 (“Walden FCA’’), as mentioned by the Commission, the Federal Court
39

(i) took note of this broad discretion with respect to the admissibility of evidence, and (ii)
held that the Tribunal does not necessarily need to hear testimony from all alleged victims
of discrimination in order to compensate them for pain and suffering. Instead, the Court
noted that it could be open to the Tribunal in an appropriate case to rely on hearsay
evidence from some individuals to determine the pain and suffering of a group.

[146] The Panel does not accept that a systemic case can only prompt systemic
remedies. As mentioned above, nothing in the CHRA prohibits the Tribunal’s discretion to
order systemic remedies along with individual remedies if the complaint is substantiated
and the evidence supports it.

[147] The children who were unnecessarily removed from their homes, will not be
vindicated by a system reform nor will their parents. Even the children who are reunified
with their families cannot recover the time they lost with their families. The loss of
opportunity to remain in their homes, their families and communities as a result of the
racial discrimination is one of the most egregious forms of discrimination leading to serious
and well documented consequences including harm and suffering found in the evidence in
this case.

[148] As it will be discussed below, the evidence is sufficient to make a finding that each
child who was unnecessarily removed from its home, family and community has suffered.
Any child who was removed and later reunited with its family has suffered during the time
of separation.

[149] The use of the ‘’words unnecessarily removed’’ account for a distinction between
two categories of children those who did not need to be removed from the home and those
who did. If the children are abused sexually, physically or psychologically those children
have suffered at the hands of their parents/caregivers and needed to be removed from
their homes. However, the children should have been placed in kinship care with a family
member or within a trustworthy family within the community. Those First Nations children
suffered egregious and compound harm as a result of the discrimination by being removed
from their extended families and communities when they should have been comforted by
safe persons that they knew. This is a good example of violation of substantive equality.
40

[150] The Panel believes that in those situations only the children should be
compensated and not the abusers. The Panel understands that some of the abusers have
themselves been abused in residential or boarding schools or otherwise and that these
unacceptable crimes of abuse are condemnable. The suffering of First Nations Peoples
was recognized by the Panel in the Decision. However, not all abused children became
abusers even without the benefit of therapy or other services. The Panel believes it is
important for the children victims/survivors of abuse to feel vindicated and not witness
financial compensation paid to their abusers regardless of the abusers' intent and history.

[151] Additionally, the Panel also recognizes that the suffering can continue for life for
First Nations children and their families even when families are reunited given the gravity
of the adverse impacts of breaking families and communities.

[152] Besides, there is sufficient evidence before the Tribunal to make findings of pain
and suffering experienced by victims/survivors who are the First Nations children and their
families.

[153] Throughout all the Decision and rulings, references were made to First Nations
children and their families. The Panel did not focus on the complainants when analyzing
the adverse impacts. The Panel analyzed the effects/impacts of the discriminatory
practices on First Nations children and clearly expressed this. The findings focused on the
agencies’ abilities to deliver services and most importantly, the First Nations children, their
families and their communities who are the victims/survivors of the discriminatory
practices. First Nations children and families are referenced continuously throughout the
Decision. The Decision starts with: ‘’This decision concerns children. More precisely, it
is about how the past and current child welfare practices in First Nations communities on
reserves, across Canada, have impacted and continue to impact First Nations children,
their families and their communities’’.

[154] Furthermore, an analysis of the Tribunal’s findings makes it clear that the Tribunal’s
orders are aimed at improving the lives of First Nations children and that the First Nations
children and Families are the ones who suffer from the discrimination. The Tribunal made
findings of systemic racial discrimination and agrees this case is a case of systemic racial
41

discrimination. The Panel also made numerous findings of adverse impacts toward First
Nation children and families, adverse impacts that cause serious harm and suffering to
children the two are interconnected. While a finding of discrimination and of adverse
impacts may not always lead to findings of pain and suffering, in these proceedings it
clearly is the case. A review of the 2016 CHRT 2 and subsequent rulings demonstrates
this. There is no reason not to accept that both coexist in this case. The individual rights
that were infringed upon by systemic racial discrimination warrant remedies alongside
systemic reform already ordered by the Tribunal (see 2016 CHRT 2, 10, 16 and 2017
CHRT 7, 14, 35 and 2018 CHRT 4).

[155] Also, the Tribunal has already made numerous findings relating to First Nations
children and their families’ adverse impacts and suffering in past rulings. Some of these
findings can be found in the compilation of citations below:

The FNCFS Program, corresponding funding formulas and other related


provincial/territorial agreements only apply to First Nations people living on-
reserve and in the Yukon. It is only because of their race and/or national or
ethnic origin that they suffer the adverse impacts outlined above in the
provision of child and family services. Furthermore, these adverse impacts
perpetuate the historical disadvantage and trauma suffered by
Aboriginal people, in particular as a result of the Residential Schools
system (see 2016 CHRT 2 at, para.459). (…)

The Panel acknowledges the suffering of those First Nations children


and families who are or have been denied an equitable opportunity to
remain together or to be reunited in a timely manner. We also
recognize those First Nations children and families who are or have
been adversely impacted by the Government of Canada’s past and
current child welfare practices on reserves (see 2016 CHRT 2 at,
para.467).

Overall, AANDC’s method of providing funding to ensure the safety and well-
being of First Nations children on reserve and in the Yukon, by supporting
the delivery of culturally appropriate child and family services that are in
accordance with provincial/territorial legislation and standards and provided
in a reasonably comparable manner to those provided off reserve in similar
circumstances, falls far short of its objective. In fact, the evidence
demonstrates adverse effects for many First Nations children and
families living on reserve and in the Yukon, including a denial of
adequate child and family services, by the application of AANDC’s FNCFS
42

Program, funding formulas and other related provincial/territorial agreements


(see 2016 CHRT 2 at, para. 393).

As will be seen in the next section, the adverse effects generated by the
FNCFS Program, corresponding funding formulas and other related
provincial/territorial agreements perpetuate disadvantages historically
suffered by First Nations people. (see 2016 CHRT 2 at, para.394).

The evidence in this case not only indicates various adverse effects on First
Nations children and families by the application of AANDC’s FNCFS
Program, corresponding funding formulas and other related
provincial/territorial agreements, but also that these adverse effects
perpetuate historical disadvantages suffered by Aboriginal peoples,
mainly as a result of the Residential Schools system.

The legacy of Indian Residential Schools has contributed to social problems


that continue to exist in many communities today. (see 2016 CHRT 2 at,
para. 404).

[…] To the approximately 80,000 living former students, and all family
members and communities, the Government of Canada now recognizes that
it was wrong to forcibly remove children from their homes and we apologize
for having done this. We now recognize that it was wrong to separate
children from rich and vibrant cultures and traditions that it created a void in
many lives and communities, and we apologize for having done this. We
now recognize that, in separating children from their families, we
undermined the ability of many to adequately parent their own children and
sowed the seeds for generations to follow, and we apologize for having done
this (...) (see 2016 CHRT 2 at, para.411).

In the spirit of reconciliation, the Panel also acknowledges the


suffering caused by Residential Schools. Rooted in racist and
neocolonialist attitudes, the individual and collective trauma imposed
on Aboriginal people by the Resident Schools system is one of the
darkest aspects of Canadian history. As will be explained in the
following section, the effects of Residential Schools continue to impact
First Nations children, families and communities to this day (see 2016
CHRT 2 at, para.412).

Even with this guiding principle, if funding is restricted to provide such


services, then the principle is rendered meaningless (…) With unrealistic
funding, how are some First Nations communities expected to address the
effects of Residential Schools? It will be difficult if not impossible to do,
resulting in more kids ending up in care and perpetuating the cycle of control
that outside forces have exerted over Aboriginal culture and identity (see
2016 CHRT 2 at, para. 425).
43

Similar to the Residential Schools era, today, the fate and future of
many First Nations children is still being determined by the
government, whether it is through the application of restrictive and
inadequate funding formulas or through bilateral agreements with the
provinces. The purpose of having a First Nation community deliver child
and family services, and to be involved through a Band Representative, is to
ensure services are culturally appropriate and reflect the needs of the
community. This in turn may help legitimize the child and family services in
the eyes of the community, increasing their effectiveness, and ultimately
help rebuild individuals, families and communities that have been heavily
affected by the Residential Schools system and other historical trauma. (see
2016 CHRT 2 at, para. 426).

(…) On that point, the Panel would like to stress how important it is to
address the issue of mass removal of children today. While Indigenous
communities may have different views on child welfare, there is no evidence
that they oppose actions to stop removing the children from their Nations.
Indeed, it would be somewhat surprising if they did as it would amount to a
colonial mindset. In any event, assertions from Canada on this point do not
constitute evidence and do not assist us in our findings. Moreover,
Indigenous communities have obligations to their children such as keeping
them safe in their homes whenever possible. While there may be different
views from one Nation to another, surely the need to keep the children in
their communities as much as possible is the same (see 2018 CHRT 4 at,
para.62).

This being said, the Panel fully supports Parliament’s intent to establish a
Nation-to-Nation relationship and that reconciliation is Parliament’s goal (see
Daniels v. Canada (Indian Affairs and Northern Development, [2016] 1 SCR
99), and commends it for adopting this approach. The Panel ordered that the
specific needs of communities be addressed and this involves consulting the
communities. However, the Panel did not intend this order to delay
addressing urgent needs. It foresaw that while agencies would have more
resources to stop the mass removal of children, best practices and needs
would be identified to improve the services while the program is reformed,
and ultimately child welfare would reflect what communities need and want,
and the best interest of children principle would be upheld. It is not one or
the other; it is one plus the other. (see 2018 CHRT 4 at, para.66).

This is a striking example of a system built on colonial views


perpetuating historical harm against Indigenous peoples, and all
justified under policy. While the necessity to account for public funds is
certainly legitimate it becomes troubling when used as an argument to justify
the mass removal of children rather than preventing it.

There is a need to shift this right now to cease discrimination. The Panel
finds the seriousness and emergency of the issue is not grasped with some
44

of Canada’s actions and responses. This is a clear example of a policy that


was found discriminatory and that is still perpetuating discrimination.
Consequently, the Panel finds it has to intervene by way of additional orders.
In further support of the Panel’s finding, compelling evidence was brought in
the context of the motions’ proceedings (see 2018 CHRT 4 at, para. 121).

Ms. Lang’s evidence, over a year after the Decision, establishes the fact that
aside from discussions, no data or short-term plan was presented to address
this matter. The focus is on financial considerations and not the best
interests of children nor addressing liability and preventing mass
removals of children (see 2018 CHRT 2 at, para.132).

The Panel finds (…) There is a real need to make further orders on this
crucial issue to stop the mass removal of Indigenous children, and to
assist Nations to keep their children safe within their own communities
(…) (see 2018 CHRT 4 at, para. 133).

It is important to remind ourselves that this is about children experiencing


significant negative impacts on their lives. It is also urgent to address the
underlying causes that promote removal rather than least disruptive
measures (see the Decision at paras.341-347), (see also 2018 CHRT 4 at,
para.166).

Canada currently funds payments of actual costs for maintenance expenses


when children are apprehended and removed from their homes and families
and has developed a methodology to pay for these expenses. Proceeding
this way and not doing the same for prevention, perpetuates the historical
disadvantage and the legacy of residential schools already explained in the
Decision and rulings. It incentivizes the removal of children rather than
assisting communities to stay together. (see 2018 CHRT 4 at, para. 230).

It is important to look at this case in terms of bringing Justice and not simply
the Law, especially with reconciliation as a goal. This country needs
healing and reconciliation and the starting point is the children and
respecting their rights. If this is not understood in a meaningful way, in the
sense that it leads to real and measurable change, then, the TRC and this
Panel’s work is trivialized and unfortunately the suffering is born by
vulnerable children (see 2018 CHRT 4 at, para. 451).

VIII. The Evidence in the Tribunal record

[156] In order to respond to the AGC’s argument that there is a lack of evidence in the
record to support a pain and suffering remedy, a review of some relevant elements of the
evidence before this Tribunal follows:
45

Mr. Dufresne: Why did you file the complaint?

DR. BLACKSTOCK: I filed the complaint as a last resort. I -- I'm one of


those people that believes that you have to try and work towards solutions
first. And we did that not only once but we did that twice over a period of
many years. We got to the place of documenting the inequality. In my view
there was consensus that that inequality existed. We talked about and I
believe with the respondent agreed with the harms to children that were a
result of not taking action, that being there growing numbers of children in
care and hardships for families, and the unequal access of services or the
denial of services to children.

We developed solutions to that, first in the National Policy Review and


secondly in the Wen:de reports. We even in the Wen:de reports took the
time to present those results to central authorities in October of 2005, and
nothing had changed remarkably at the level of the child. We felt that there
was no other alternative than to bring a human rights complaint. And even
as we brought it, I was very hopeful that that would be incentive enough for
the respondent to take the action needed on behalf of the children, but we
find ourselves here today. (See Testimony of Dr. Cindy Blackstock,
StenoTran transcripts February 28, 2013, page 3, lines 17-25 and page 4,
lines 1-19 vol 4) (emphasis added).

[157] Dr. Blackstock testified before the Tribunal and the Panel finds her testimony to be
reliable and to speak to the issue of harm suffered by First Nations children as a result of
the discrimination.

[158] Mr. Dubois is the Executive Director Touchwood agency and has a Bachelor of
Social Work degree from the University of Calgary and also testified before the Tribunal:

(…) MR. DUBOIS: I raised the issue with Indian Affairs.

MR. POULIN: Why?

MR. DUBOIS: Because I wanted to get away from just being limited to
having to -- it was a situation where you kind of -- you had to break up a
family under Directive 20-1 before you could provide the services. It's
only when you took a child into care that you could start to rebuild the
family. I wanted to be proactive. And this goes back to our history as a First
Nations people, including my history where, you know, having to endure
boarding school, like my dad, my late father was in boarding school, and the
damage it did to us or the interference that back then that the church had on
our family systems, so I wanted to get away from that. Like having lived
that experience, we don't need more interference. We don't need more
-- for lack of a better word, wreaking havoc on our families. I come with
46

the frame of mind that our families need healing and I, as a trained
professional, and others out there in Saskatchewan and the other
agencies, you know, like there has to be a different way to do child
welfare other than breaking families up. We want to heal. We need to
heal. We have to do things differently, which is why when I referenced the
SDM it was really appealing to me because it focuses on our strengths, you
know, it builds on what we are and what we have. (see Testimony of Derald
Richard Dubois, April, 8, 2013, StenoTran transcript a, pp. 60-61 lines 7-24;
1-11, vol 9). See also testimony of Mr. Derald Richard Dubois, StenoTran
transcripts April 8, 2013, page lines and page 4 lines vol 9).

[159] Mr. Dubois who is a child welfare professional refers to the Federal funding formula
Directive 20-1 that was found discriminatory by this Panel causing significant adverse
impacts to First Nations children and their families. What is more, he testifies of one of the
worst of those adverse impacts being the unnecessary removal of children from their
homes, families and communities.

[160] This is a reliable and powerful testimony that exemplifies the pain and suffering and
harm done to First Nations children, families and communities as a result of the racial and
systemic discrimination that is perpetuating historical wrongs.

[161] The Panel finds that unnecessarily removing a child from its family and community
is a serious harm causing great suffering to that child, the family and the community.

[162] There is also evidence of harm/suffering to First Nations children and families in
several reports forming part of the evidentiary record already considered and relied upon
by the Panel in arriving to its findings of adverse impacts in the 2016 Decision. The
Wen:de we are coming to the light of day, 2005 report (WEN DE) was filed into evidence
before the Tribunal. The AGC had the opportunity to make submissions on this report and
the Panel made findings on the reliability of this report. Moreover, the Tribunal accepted
the findings in WEN DE as its own findings (See Decision 2016 CHRT 2 at, para.257):
‘’The Panel finds the NPR and WEN DE reports to be highly relevant and reliable evidence
in this case. They are studies of the FNCFS Program commissioned jointly by AANDC and
the AFN’’. They employed a rigorous methodology, in depth analysis of Directive 20-1, and
consultations with various stakeholders. The Panel accepts the findings in these reports.
There is no indication that AANDC questioned the findings of these reports prior to this
47

Complaint. On the contrary, there are indications that AANDC, in fact, relied on these
reports in amending the FNCFS Program in a piece meal fashion.

[163] Additionally, Canada was part of this study and fully aware of its findings and
impact of its practices on First Nations children which in fact exacerbates Canada’s wilful
and reckless conduct in not correcting the discriminatory practice identified in the 2005
year of the report which will also be revisited in the wilful and reckless section below. The
Panel had reviewed all the WEN DE reports before accepting it as its own and included
some references of those findings in the Decision. The following additional findings
support the issue of compensation for pain and suffering of children and their families and
inform the Panel in drafting its orders:

Secondary analysis of the Aboriginal data in CIS-98 revealed that although


Aboriginal children were less likely to be reported to child welfare authorities
for physical or sexual violence they were twice as likely to experience
neglect (Blackstock, Trocme & Bennett, 2004). When researchers unpacked
neglect by controlling for various care giver functioning and socio-
demographic factors – they determined that the key drivers of neglect for
First Nations children were poverty, poor housing, and substance
misuse (Trocme, Knoke & Blackstock, 2004). It is important to note that two
of these three factors are arguably outside of the domain of parental
influence – poverty and poor housing. As they are outside of the locus of
control of parents is unlikely that parents will be able to redress these risks in
the absence of social investments targeted to poverty reduction and housing
improvement. The limited ability for parents to influence the risk factors
can mean that their children are more likely to stay in care for
prolonged periods of time. This is particularly a concern in regions
where statutory limits on the length of time a child is being put in care
are being introduced. If parents alone cannot influence the risk and
there are inadequate social investments to reduce the risk – children
can be removed permanently. The third factor, substance misuse, is
within the personal domain for change but requires access to services.
Overall, CIS- 98 results suggest that targeted and sustained investments
in neglect focused services that specifically consider substance
misuse, poverty and poor housing would likely have a positive impact
on the safety and well-being of these children. (emphasis ours).

[164] The Panel finds that First Nations children and families are harmed and penalized
for being poor and for lacking housing. Those are circumstances that are most of the time
beyond the parents’ control.
48

[165] The WEN De report goes on to say that:

(...) providing an adequate range of neglect focused services is likely more


complicated on reserve than off reserve due to existing service deficits within
the government and voluntary sector. A study conducted by the First Nations
Child and Family Caring Society in 2003 found that First Nations children
and families receive very limited benefit from the over 90 billion dollars in
voluntary sector services provided to other Canadians annually. Moreover,
there are far fewer provincial or municipal government services than off
reserve. This means that First Nations families are less able to access child
and family support services including addictions services than their non-
Aboriginal counterparts (Nadjiwan & Blackstock, 2003). Deficits in support
services funding were also found in the federal government allotment for
First Nations child and family services (MacDonald & Ladd, 2000.) This
report found that the federal government funding for least disruptive
measures (a range of services intended to safely keep First Nations
children who are experiencing or at risk of experiencing child
maltreatment safely at home) is inadequately funded. When one
considers the key drivers resulting in First Nations children entering
care (substance misuse, poverty and poor housing) and couples that
with the dearth in support services, unfavorable conditions to support
First Nations families to care for their children emerges (see WEN DE
at, pp.13-14) (emphasis ours).

Although there has been no longitudinal studies exploring the experiences of


Aboriginal children in care throughout the care continuum (from report to
continuing custody), data suggests that Aboriginal children are much more
likely to be admitted into care, stay in care and become continuing custody
wards. It is possible that the over representation of Aboriginal children in
child welfare care is a result of the structural risk factors (poverty, poor
housing and substance misuse) not being adequately addressed through
the provision of targeted least disruptive measures at both the level of the
family and community. The lack of service provision may result in minimal
changes to home conditions over the period of time the child remains in care
and thus it is more likely the child will not return home (see WEN DE pp.13-
14).

The lack of services, opportunities and deplorable living conditions


characterizing many of Canada’s reserves has led to mass
urbanization of Aboriginal peoples (…)

Funding First Nations have made a direct connection between the state of
children’s health and the colonization and attempted assimilation of
Aboriginal peoples: The legacy of dependency, cultural and language
impotence, dispossession and helplessness created by residential schools
and poorly thought out federal policies continue to have a lasting
49

effect. - Substandard infrastructure and services have been made


worse by federal-provincial disagreements over responsibility.

The most profound impact of the lack of clarity relating to jurisdiction results
in what many commentators have suggested are gaps in services and
funding –resulting in the suffering of First Nations children. As
articulated by McDonald and Ladd in their comprehensive Joint Policy
Review (prepared for the Assembly of First Nations and DIAND): First
Nations agencies are expected through their delegation of authority from the
provinces, the expectation of their communities, and by DIAND, to provide a
comparable range of services on reserve with the funding they receive
through Directive 20.1. The formula, however, provides the same level of
funding to agencies regardless of how broad, intense or costly, the range of
services is (see WEN DE at, pp.90-91).

The issues raised by FNCFS providers demonstrate the tangible effects of


funding limitations on the ability of agencies to address the needs of
children. Without funding for provision of preventative services many
children are not given the service they require or are unnecessarily
removed from their homes and families. In some provinces the option of
removal is even more drastic as children are not funded if placed in the care
of family members. The limitations placed on agencies quite clearly
jeopardize the well-being of their clients, Aboriginal children and families. As
a society we have become increasingly aware of the social devastation of
First Nations communities and have discussed at length the importance of
healing and cultural revitalization. Despite this knowledge, however, we
maintain policies which perpetuate the suffering of First Nations
communities and greatly disadvantage the ability of the next
generation to effect the necessary change. (see WEN DE at, p.93).

[166] The Supreme Court of Canada found that the removal of a child from a parent’s
custody affects the individual dignity of that parent:

In Godbout v. Longueuil, La Forest J. held that: …the autonomy protected


by the s. 7 right to liberty encompasses only those matters that can properly
be characterized as fundamentally or inherently personal such that, by their
very nature, they implicate basic choices going to the core of what it means
to enjoy individual dignity and independence… choosing where to
establish one’s home is, likewise, a quintessentially private decision going to
the very heart of personal or individual autonomy.
Although the liberty to choose where one resides is clearly not an inalienable
right, it may be considered a strong argument that children should only
be forced to leave their family homes in the most extreme
circumstances. This is not the case here as Aboriginal children are
removed from their homes in far greater numbers than non-Aboriginal
children for the purposes of receiving services.
50

Alternatively, it may be argued that placement of children in care, due


to lack of services, amounts to an infringement of the parent’s right to
security of the person, under s.7. (see WEN DE at, pp.96-97) (emphasis
ours).

[167] According to the Supreme Court of Canada, the removal of a child from a parent’s
custody adversely impacts the psychological integrity of that parent causing distress, in
New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R.
46.

The Supreme Court of Canada found the right to security of the person
encompasses psychological integrity and may be infringed by state action
which causes significant emotional distress:
Moreover, it was held that the loss of a child constitutes the kind of
psychological harm which may found a claim for breach of s.7. Lamer J.,
for the majority, held: I have little doubt that state removal of a child from
parental custody pursuant to the state’s parens patriae jurisdiction
constitutes a serious interference with the psychological integrity of
the parent…As an individual’s status as a parent is often fundamental to
personal identity, the stigma and distress resulting from a loss of parental
status is a particularly serious consequence of the state’s conduct.

The Court went on to state that there are circumstances where loss of a
child will not found a prima facie breach of s.7, including when a child is sent
to prison or conscripted into the army. Clearly, these circumstances can be
distinguished from the removal of a child from his/her home due to the
government’s failure to provide adequate funding and services (see WEN
DE at, pp.96-97) (emphasis ours).

The federal funding formula, directive 20-1, impacts a very vulnerable


segment of our society, Aboriginal children. The protection of these
children from state action, infringing on their most fundamental rights and
freedoms, is clearly in line with the spirit of ss.7 and 15 of the Charter.
Research conducted on the issue of child welfare plainly shows
differentiation in the quality of services provided on and off reserve and to
aboriginal and non-aboriginal children. This type of differentiation is
unacceptable in a society that prides itself on protection of the vulnerable.
(WEN DE at, pp.96-97) (emphasis ours).

[168] Furthermore, compelling evidence in other reports filed in evidence also discuss the
psychological damage, pain and suffering endured by First Nations children and their
families:
51

WE BEGIN OUR DISCUSSION of social policy with a focus on the family


because it is our conviction that much of the failure of responsibility that
contributes to the current imbalance and distress in Aboriginal life centres
around the family. Let us clarify at the outset that the failure of responsibility
that we seek to understand and correct is not a failure of Aboriginal families.
Rather, it is a failure of public policy to recognize and respect Aboriginal
culture and family systems and to ensure a just distribution of the wealth and
power of this land so that Aboriginal nations, communities and families can
provide for themselves and determine how best to pursue a good life. (see
RCAP, vol. 3, at, p. 8).

Many experts in the child welfare field are coming to believe that the
removal of any child from his/her parents is inherently damaging, in
and of itself…. The effects of apprehension on an individual Native
child will often be much more traumatic than for his non-Native
counterpart. Frequently, when the Native child is taken from his parents, he
is also removed from a tightly knit community of extended family members
and neighbours, who may have provided some support. In addition, he is
removed from a unique, distinctive and familiar culture. The Native child is
placed in a position of triple jeopardy (see RCAP, Gathering strength, vol. 3,
at, pp. 23-24).

[169] The Panel finds there is absolutely no doubt that the removal of children from their
families and communities is traumatic and causes great pain and suffering to them:

At our hearings in Kenora, Josephine Sandy, who chairs Ojibway Tribal


Family Services, explained what moved her and others to mobilize for
change:

Over the years, I watched the pain and suffering that resulted as non-Indian
law came to control more and more of our lives and our traditional lands. I
have watched my people struggle to survive in the face of this foreign law.

Nowhere has this pain been more difficult to experience than in the
area of family life. I and all other Anishnabe people of my generation have
seen the pain and humiliation created by non-Indian child welfare agencies
in removing hundreds of children from our communities in the fifties, sixties
and the seventies. My people were suffering immensely as we had our way
of life in our lands suppressed by the white man’s law.

This suffering was only made worse as we endured the heartbreak of


having our families torn apart by non-Indian organizations created
under this same white man’s law.

People like myself vowed that we would do something about this. We


had to take control of healing the wounds inflicted on us in this
tragedy.
52

Josephine Sandy Chair, Ojibway Tribal Family Services Kenora, Ontario, 28


October 1992,

(see RCAP, Gathering strength, vol. 3, at, p. 25) (emphasis ours).

[170] Another report filed in evidence supports the existence of pain and suffering of First
Nations children and their families. Several experiences of massive loss have disrupted
First Nations families and have resulted in identity problems and difficulties in functioning.
In 1996, more than 10% of Aboriginal children (age 0-14) were not living with their parents.
see p. 7 Joint National policy review (NPR) exhibit filed into evidence. Akin to the WEN DE
report, the Tribunal accepted the findings in the NPR as its own findings (See 2016 CHRT
at, para.257) Additionally, Canada was part of this study and fully aware of its findings
which in fact exacerbates Canada’s wilful and reckless conduct in not correcting the
discriminatory practice identified in 2000, year of the report. This will also be discussed
later.

[171] More Recently, the Panel made findings that support the findings for pain and
suffering of First Nations children and their families when the families are torn apart:

Ms. Marie Wilson, one of the three Commissioners for the TRC mandated to
facilitate truth-telling about the residential school experience and lead the
country in a process of ongoing healing and reconciliation, swore an affidavit
that was filed into evidence in the motions’ proceedings. She affirms that
she personally bore witness to fifteen hundred statements made to the
TRC. Many were from those who grew up as children in the foster care
system as it currently exists. She also heard from hundreds of parents
with children taken into care. Over and over again, she states the
Commissioners heard that the worst part of the Residential schools
was not the sexual abuse but rather the rupture from the family and
home and everything and everyone familiar and cherished. This was
the worst aspect and the most universal amongst the voices they
heard. (see 2018 CHRT 4 at, para.122).

Ms. Wilson notes in her affidavit that children removed from their parents to
be placed in foster care shared similar experiences to those who went to
residential schools. The day they remember most vividly was the day
they were taken from their home. She mentions, as the Commissioners
have said in their report, that child welfare may be considered a continuation
of or, a replacement for the residential school system. (see 2018 CHRT 4 at,
para.123).
53

Ms. Wilson affirms that they, (the TRC), intentionally centered their 5 first
calls to Action specifically on child welfare. This was to shed a focused and
prominent light on the fact that the harms of residential schools
happened to children, that the greatest perceived damage to them was
their removal from their home and family; and that the legacy of
residential schools is not only continuing but getting worse, with
increasing numbers of child apprehensions through the child welfare
system. (see 2018 CHRT 4 at, para.124).

In addition to the Legacy calls to action pertaining to child welfare, she


explains that they also articulated child welfare goals in the subsequent
Reconciliation section. Call to Action 55 underscores the importance of
creating and tracking honest measurements of the numbers of Indigenous
children still apprehended and why, and the support being provided for
them, based on comparative spending in prevention and care. (see 2018
CHRT 4 at, para.125).

According to Ms. Wilson, it is imperative that the child welfare system, which
is driving Indigenous children into foster care at disproportionate rates, be
immediately addressed. She has learned firsthand that children who are
severed from their families will forever carry with them a lasting and
detrimental sense of loss, along with other negative issues that may
change the course of their lives. (see 2018 CHRT 4 at, para.126).

The Panel has made findings on this issue in the Decision and we echo Ms.
Wilson’s call to action to immediately address the causes that drive
Indigenous children into foster care. (see 2018 CHRT 4 at, para.127).

[172] The Panel received Ms. Wilson’s evidence in 2017-2018 and has relied upon it in
its ruling. The ruling was accepted by Canada in its submissions following receipt of an
advanced confidential copy of the ruling and the Panel included Canada’s submissions
and the Panel’s comments in the ruling:

Finally, on the same day, the AGC (…) indicated that Canada is fully
committed to implement all the orders in this ruling and understands that its
funding approach needs to change, which includes providing agencies the
funding they need to meet the best interests and needs of First Nations
children and families.

The Panel is delighted to read Canada’s commitment and openness. This is


very encouraging and fosters hope to a higher degree (see 2018 CHRT 4 at,
paras.449-450).
54

[173] This was reiterated later on, as part of a consultation protocol with all parties in this
case and signed by Minister Jane Philpott as she then was (see Consultation Protocol
signed March 2, 2018).

[174] Moreover, Canada has accepted the TRC’s report authored by the 3
Commissioners including Ms. Wilson, and undertook to implement all 94 calls to action
(see 2018 CHRT 4 at, para.61). It is unlikely that Canada would accept the
recommendations yet not the findings that led to those recommendations.

[175] What is more, the Panel believes that the highly credible TRC Commissioner like
other adults referred to above speak on behalf of children and voice the harm and
suffering endured by First Nation children who are vulnerable and need not to testify
before this Tribunal for the Panel to make a determination of their suffering of being
unnecessarily removed from their homes and the harms caused as a result of the systemic
and racial discrimination.

[176] Furthermore, as mentioned above, the Tribunal has already recognized the need
and importance for First Nations children, communities and Nations for urgent action to
eliminate the removal of First Nations children from their families and communities as a
result of the discrimination and Canada’s part in remedying it in the March 2, 2018
Consultation protocol signed by Minister Philpott:

To address what the Tribunal in paragraph 47 of the February 1st Ruling


refers to as the “mass removal of children”. As the Tribunal states: “There is
urgency to act and prioritize the elimination of the removal of children from
their families and communities”. (Consultation protocol signed March 2,
2018 at, section d, page 5)

To promote substantive equality for First Nations children, families and


communities on reserves and in the Yukon in the delivery of child and family
services, particularly in light of their higher level of needs because of
historical disadvantages suffered by First Nations families, children and
communities as a result of the legacy of colonialism and Indian Residential
Schools. (Consultation protocol at, section g, page 5).

[177] Also, to the question what if the child was unnecessarily removed as a result of
multiple factors and not solely because of Canada’s actions? The Panel answers that
while the Panel acknowledges that child welfare issues are multifaceted and may involve
55

the interplay of numerous underlying factors (see for example, 2016 CHRT 2 Decision at,
para. 187) this does not alleviate Canada’s responsibility in the suffering of First Nations
children and their families who bore the adverse impacts of Canada’s control over the
provision of child and family services on First Nations reserves and in the Yukon by the
application of the funding formulas under the FNCFS Program.

[178] Moreover, the Panel found that in this case we are in a unique constitutional
context namely, Parliament’s exclusive legislative authority over “Indians, and lands
reserved for Indians” by virtue of section 91(24) of the Constitution Act, 1867. Furthermore,
Canada, is in a fiduciary relationship with Aboriginal Peoples. What is more, Canada has
undertaken to improve outcomes for First Nations children and families in the provision of
child and family services. On this basis, the Panel found that more has to be done by
Canada to ensure that the provision of child and family services on First Nations reserves
is meeting the best interest of those communities and, in the particular context of this case,
the best interest of First Nations children (see 2016 CHRT 2 Decision at, para. 427).

[179] This also corresponds to Canada’s international commitments recognizing the


special status of children and Indigenous peoples. Also, the Panel found that Canada
provides a service through the FNCFS Program and other related provincial/territorial
agreements and method of funding the FNCFS Program and related provincial/territorial
agreements significantly controls the provision of First Nations children and family services
on reserve and in the Yukon to the detriment of First Nations children and families.

[180] Those formulas are structured in such a way that they promote negative outcomes
for First Nations children and families, namely the incentive to take children into care. The
result is many First Nations children and families are denied the opportunity to remain
together or be reunited in a timely manner (see 2016 CHRT 2 Decision at, paras. 111;
113; 349).

[181] The Panel already found the link between the removal of children and Canada’s
responsibility in numerous findings including the following: ‘’Yet, this funding formula
continues. As the Auditor General puts it, “Quite frankly, one has to ask why a program
goes on for 20 years, the world changes around it, and yet the formula stays the same,
56

preventative services aren't funded, and all these children are being put into care.” (See
2016 CHRT 2 Decision at, para.197).

[182] The pain and suffering caused by the unnecessary removal of First Nations
children and their families and Canada’s role is at least reasonably quantifiable to $20,000.
While it is the maximum compensation allowed under section 53 (2) (e) of the CHRA, it is
not much in comparison to the egregious harm suffered by the First Nations children and
their families as a result of the racial discrimination and adverse impacts found in this case.
Other pain and suffering caused by other actors could potentially be sought in other
forums. The Panel’s role is to quantify as best as possible the appropriate remedy to
compensate victims/survivors as part of these proceedings with the evidence available.

[183] Furthermore, the AGC relies also on the Public Service Alliance of Canada v.
Canada Post Corporation case (see 2005 CHRT 39 at para. 991) to suggest that the
Tribunal cannot award remedies for pain and suffering to the non-complainant victims “en
masse”. The Canada Post case made a finding that there was a lack of evidence before
the Tribunal and that there was no systemic case. This is different from this case where
there is sufficient evidence to support findings of systemic discrimination and findings of
suffering borne by the victims/survivors in this case, the First Nations children and their
families.

[184] The evidence is ample and sufficient to make a finding that each First Nation child
who was unnecessarily removed from its home, family and community has suffered. Any
child who was removed and later reunited with its family has suffered during the time of
separation and from the lasting effects of trauma from the time of separation.

[185] The evidence is ample and sufficient to make a finding that each parent or grand-
parent who had one or more child under her or his care who was unnecessarily removed
from its home, family and community has suffered. Any parent or grand-parent if the
parents were not caring for the child who had one or more child removed from them and
later reunited with them has suffered during the time of separation. The Panel intends to
compensate one or both parents who had their children removed from them and, if the
parents were absent and the children were in the care of one or more grand-parents, the
57

grand-parents caring for the children should be compensated. While the Panel does not
want to diminish the pain experienced by other family members such as other grand-
parents not caring for the child, siblings, aunts and uncles and the community, the Panel
decided in light of the record before it to limit compensation to First Nations children and
their parents or if there are no parents caring for the child or children, their grand-parents.

[186] The Panel also recognizes that the suffering can continue even when families are
reunited given the gravity of the adverse impacts of breaking apart families and
communities.

[187] The Panel addressed the adverse impacts to children throughout the Decision. The
Panel found a connection between the systemic racial discrimination and the adverse
impacts and that those adverse impacts are harmful to First Nations children and their
families. All are connected and supported by the evidence. The Panel acknowledged this
suffering in its unchallenged Decision. It did not have individual children who testified to the
adverse impacts that they have experienced nevertheless the Panel found that they did
suffer those adverse impacts and found systemic racial discrimination based on sufficient
evidence before it. The adverse impacts identified in the Decision and suffered by children
and their families were found to be the result of the systemic racial discrimination in
Canada’s FNCFCS Program, funding formulas, authorities and practices.

[188] The Panel need not to hear from every First Nation child to assess that being
forcibly removed from their homes, families and communities can cause great harm and
pain. The expert evidence has already established that. The CHRA regime is different than
that of a Court where a class action may be filed. The CHRA model is based on a human
rights approach that is purposive and liberal and that is aimed at vindicating the victims of
discriminatory practices whether considered systemic or not see section 50 (3) (c) of the
CHRA. We are talking about the mass removal of children from their respective Nations.
(see 2018 CHRT 4 at, paras. 47,62,66,121,133). The Tribunal’s mandate is within a quasi-
constitutional statute with a special legislative regime to remedy discrimination. This is the
first process to employ when deciding issues before it. If the CHRA and the human rights
case law are silent, it may be useful to look to other regimes when appropriate. In the
present case, the CHRA and human rights case law voice a possible way forward. The
58

novelty and unchartered territory found in a case should not intimidate human rights
decision-makers to pioneer a right and just path forward for victims/survivors if supported
by the evidence and the Statute. As argued by the Commission, sufficiency of evidence is
a material consideration.

[189] Furthermore, the impracticalities and the risk of revictimizing children outweigh the
difficulty of establishing a process to compensate all the victims/survivors and the need for
the evidence presented of having a child testify on how it felt to be separated from its
family and community.

[190] The Panel rejects the AGC’s argument that there is no evidence of harm the victims
suffered as a result of the discrimination to demonstrate that the victims meet the statutory
requirements for compensation.

[191] The evidence is sufficient to establish a connection between the systemic racial
discrimination and the First Nations children who did not receive services or did receive
services that were inadequate and harmful. This was all explained in the Decision and it is
now too late to challenge those findings. The children should not be penalized because
the Panel had outstanding questions concerning compensation which prompted further
submissions from the parties.

[192] Finally, on this point, the Panel rejects the assertion made by the AGC that there is
no evidence permitting the Panel to determine the extent and seriousness of the harm in
order to assess the appropriate compensation for the individual victims. Furthermore, the
AGC’s argument that there is no evidence of pain and suffering from children and families
as a result of the discrimination is simply not true. This is a similar assertion that Canada
has made on the evidence to prove the complaint on its merits. In fact, such a conclusion
by Canada is concerning to say the least. It also raises questions from this Panel. The
harm done to First Nations children who are vulnerable and to families and communities is
precisely why the Panel issued numerous rulings requesting immediate action. This Panel
recognizes, as described by the Caring Society, the rights of the child are human rights
that recognize childhood as an important period of development with special
59

circumstances. This is also recognized by all levels of Courts in Canada and was
discussed in this Panel’s Decision on the merits 2016 CHRT at, para.346:

A focus on prevention services and least disruptive measures in the


provincial statutes mentioned above is inextricably linked to the concept of
the best interest of the child: a legal principle of paramount importance in
both Canadian and international law (see Canadian Foundation for Children,
Youth and the Law v. Canada (Attorney General), 2004 SCC 4 (CanLII) at
para. 9; and, Baker v. Canada (Minister of Citizenship and Immigration),
1999 CanLII 699 (SCC), [1999] 2 SCR 817 at para. 75 [Baker]). As
explained by Professor Nicholas Bala:

[L]eading Canadian precedents, federal and provincial statutes and


international treaties are all premised on the principle that decisions about
children should be based on an assessment of their best interests. This is a
central concept for those who are involved making decisions about children,
not only for judges and lawyers, but for also assessors and mediators (see
2016 CHRT 2 at, para.346).

Child welfare services, or child and family services, are services designed to
protect children and encourage family stability. Hence the best interest of the
child is a paramount principle in the provision of these services and is a
principle recognized in international and Canadian law. This principle is
meant to guide and inform decisions that impact all children, including First
Nations children (2016 CHRT 2 at, para.3).

[193] This is where the urgency of remedying systemic racial discrimination comes from.
It is clearly expressed in the Panel’s rulings. Removing children from their homes, families,
communities and Nations destroys the Nations’ social fabric leading to immense
consequences, it is the opposite of building Nations. That is trauma and harm to the
highest degree causing pain and suffering.

[194] The Panel’s urging Canada to act on a number of occasions was not expressed
without a reason. It was for the reason that this case is about children and there is urgency
to act and the Panel understood it.

[195] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at
para. 239 [Baker] an appeal against deportation based on the position of Baker’s
Canadian born children, the Supreme Court held procedural fairness required the
decision-maker to consider international law and conventions, including the United
Nations’ Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (the UNCRC). The
60

Court held the Minister’s decision should follow the values found in international human
rights law.

[196] The AGC should not be allowed to avoid this principle in Canada, a country who
professes to uphold the best interest of the child and who signed and ratified the
Convention on the Rights of the Child (see 2016 CHRT 2 at, para.448). Also, the CHRA is
a result of the implementation of international human rights principles in domestic law (see
the Decision at paras 437-439).

[197] The Panel agrees that remedies under section 53 (2) (e) of the Act are not to
punish the Respondent however, they serve the purpose to deter the authors of
discriminatory practices to continue or to repeat the same patterns. They are also some
form of vindication for the victims/survivors reminding society that there is also a price to
fostering inequalities which is a strong component of justice leading to some measure of
healing for victims/survivors.

IX. Organizations cannot receive compensation and do not represent victims’


argument

[198] The individuals affected by the Decision and subsequent orders, and who are
looking for an opportunity equal to other individuals to make for themselves the lives that
they are able and wish to have, are First Nations children (see 2017 CHRT 14 at,
para.116).

[199] The Panel sees no merit in accepting the AGC's argument that if the Tribunal finds
it has jurisdiction to award remedies under section 53 (2) (e) the AFN and the Caring
Society should be awarded the remedies and not the First Nations children. This
contradicts the AGC’s own argument that acknowledges that the AFN and the Caring
Society are organizations not victims (see para.110 above).

[200] In a previous ruling, the Panel discussed the AFN and the Caring Society’s roles in
representing First Nations children’s rights:

To ensure Aboriginal rights and the best interests of First Nations children
are respected in this case, the Panel believes the governance organizations
61

representing those rights and interests, representing those children and


families affected by the Decision and who are professionals in the area of
First Nations child welfare, such as the Complainants and the Interested
Parties, should be consulted on how best to educate the public, especially
First Nations peoples, about Jordan’s Principle. This consultation will also
ensure a level of cultural appropriateness to the education plan and
materials (see 2017 CHRT 14 at, para.118).

[201] However, it is true that the Complainants do not have a legal representation
mandate given by each FN child and parent living on reserve to seek remedy on their
behalf at the Tribunal. What they do have is a resolution from the Chiefs in Assembly of
the AFN mandating the AFN to seek remedies for Members of First Nations who are
represented by their elected First Nations Chiefs. Some First Nations Peoples may
disagree to have the AFN or others to advocate on their behalf and request individual
remedies in front of the Tribunal, this is their right and the Panel believes they should be
able to opt-out. The opting-out possibility will form part of the compensation process
discussed below.

[202] This being said, for those who would accept, the Panel finds that the AFN
mandated by resolution by Chiefs of First Nations should be able to speak on behalf of
their children and voice their needs and seek redress for compensation which should go
directly to victims/survivors following a culturally safe and independent process, protecting
sensitive information and privacy with the option to opt-out. The Panel believes also that
the COO and the NAN should be able to speak on behalf of their children and voice their
needs and seek redress for compensation. Also, the Caring Society directed by Dr. Cindy
Blackstock has worked tirelessly for numerous years to represent the best interest of
children with an Indigenous lens and has invaluable expertise to assist the Panel and the
parties in this process.

[203] This being said the Panel does not believe that it has jurisdiction to create another
Tribunal to delegate its responsibilities under the CHRA to it. The compensation process
will be discussed below.
62

X. The right to exercise individual rights, class action and victims’


identification

[204] The Panel believes that individuals have the right to exercise their individual rights
and for those who chose to do so, they should be able to opt-out from receiving the
compensation ordered in this ruling.

[205] The Panel also notes that the class action has not yet been certified by the Federal
Court. Moreover, the possibility of a future certified class action and, if successful, orders
made for punitive damages remedies under the Charter amongst other things being offset
by the capped remedies orders under the CHRA made by this Tribunal is not a convincing
argument to refrain from awarding compensation in these proceedings. Additionally, the
Tribunal’s orders below do not cover years 1991 to 2005. The Tribunal’s orders below also
cover First Nations children and First Nations parents or grandparents.

[206] The fact that a class action has been filed does not change the Tribunal's
obligations under the Act to remedy the discrimination and if applicable as it is here, to
provide a deterrent and discourage those who discriminate, to provide meaningful
systemic and individual remedies to a group of vulnerable First Nations children and their
families who are victims/survivors in this case.

[207] In regards to identification of victims/survivors, as explained by the Caring Society,


some of the children can be identified by the Indian Registry and following a process
agreed upon by the parties who wish to participate. Therefore, their identities are not
impossible to obtain and are readily available contrary to the situation in the C.N.R. case
from the Federal Court of Appeal that the AGC relies upon. The AGC argues the Court
concluded that compensation for individuals is not an appropriate remedy in complaints of
systemic discrimination. The AGC added the Court found that compensation is limited to
victims which made it “impossible, or in any event inappropriate, to apply it in cases of
group or systemic discrimination” where, as here “by the nature of things individual victims
are not always readily identifiable”. Again, this is not the case here.

[208] The Panel finds this is a case where it is appropriate to compensate


victims/survivors since the systemic racial discrimination and the adverse impacts found by
63

the Panel in its Decision subsequent rulings and this ruling, caused serious harm to
victims/survivors. While the task to identify all the individuals is a complex one, it is not
impossible given the Indian Registry and the Jordan’s Principle process and records.

XI. Class actions and representative of the victims

[209] On one hand, the AGC contends the Tribunal is not the right forum to deal with
class actions and on another hand it uses some of the class action criteria to support its
position that there is no representative of the group of victims before the Tribunal. With
respect, the AGC cannot have it both ways. Accepting the proposition that the Tribunal is
not the right forum for class actions in light of its statute requires one to look at what can
be done under the statute and not impose the class action criteria to the Tribunal process.
While it can be useful to look at class action requirements, the rules of statutory
interpretation require the Tribunal to first look at the CHRA given that its jurisdiction is
derived from it. In addition, the CHRA is quasi-constitutional in nature which would
supersede any law conflicting with the CHRA. If the CHRA is silent on an issue, the
Tribunal can then use a number of useful tools at its disposition.

[210] In any event, even proof by presumption of facts subject to being provided that
such presumptions are sufficiently serious, precise and concordant, applies to class
actions (Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-
Ferdinand, [1996] 3 SCR 211, 1996 CanLII 172 (SCC) at, para.132). More so in front of a
Human Rights Tribunal allowed to receive any type of evidence under the Act.

XII. Jordan’s Principle remedies

[211] There is no doubt that Jordan’s Principle has always been part of the claim from the
complaint to the Statement of Particulars to the presentation of evidence and the
Tribunal’s findings and orders. This question was answered and cannot be revisited.

[212] In sum, in honor and memory of Jordan River Anderson, Jordan’s Principle is a
child-first principle that applies equally to all First Nations children, whether resident on or
off reserve. It is not limited to First Nations children with disabilities, or those with discrete
64

short-term issues creating critical needs for health and social supports or affecting their
activities of daily living (see 2017 CHRT 35 at, para.19, i).

[213] Jordan’s Principle addresses the needs of First Nations children by ensuring there
are no gaps in government services to them. It can address, for example, but is not limited
to, gaps in such services as mental health, special education, dental, physical therapy,
speech therapy, medical equipment and physiotherapy. (see 2017 CHRT 35 at, para.19,
ii).

[214] What is more, the Panel rejects the AGC’s argument that compensation is
inappropriate in Jordan’s Principle cases since the Tribunal already ordered Canada to
retroactively review the cases that were denied. The retroactive review of cases ensures
the child receives the service if not too late and eliminate discrimination. It does not
account for the suffering borne by children and their parents while they did not receive the
service.

[215] On the issue of there being no basis in the Act to award compensation to
complainant organizations or non-complainant individuals under Jordan’s Principle, the
Panel applies the same reasoning outlined above. On the argument advanced by Canada
that when it has implemented policies that satisfactorily address discrimination no further
orders are required, the Panel also relies on its reasons above where it says that systemic
and individual remedies can co-exist if the evidence in the specific case supports it and is
deemed appropriate by the Panel.

[216] Also, the Panel ordered the use of a broad definition of Jordan’s Principle that
applies to all First Nations services across all services. It is worth mentioning that many
Jordan’s Principle cases involve vulnerable children who experience mental and/or
physical disabilities. We will return to this right after a review of the purpose of the CHRA
below:

The purpose of the CHRA is to give effect to the principle that all individuals
should have an opportunity equal with other individuals to make for
themselves the lives that they are able and wish to have and to have their
needs accommodated, consistent with their duties and obligations as
65

members of society, without being hindered in or prevented from doing so by


discriminatory practices.

(Section 2 of the CHRA).

[217] In the same vein with this principle, the Covenant on the Rights of Persons with
Disabilities, adopted on 13 December 2006 during the sixty-first session of the General
Assembly by resolution A/RES/61/106 signed by Canada on March 30th, 2007 and ratified
by Canada on March 11, 2010, in its Preamble mentions:

Recognizing also that discrimination against any person on the basis of


disability is a violation of the inherent dignity and worth of the human person.
(see Grant at paras.103-104). Moreover, article 1 of the Universal
Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at. 71
(1948), which provides that all human beings are born free and equal in
dignity and in rights.

[218] The concept of objective appreciation of dignity when vulnerable mentally disabled
persons who are not always in a position to appreciate their own self-dignity or breach
there of as been recognized by the Supreme Court of Canada:

Having regard to the manner in which the concept of personal “dignity” has
been defined, and to the principles of large and liberal construction that
apply to legislation concerning human rights and freedoms, I believe that s. 4
of the Charter addresses interferences with the fundamental attributes of a
human being which violate the respect to which every person is entitled
simply because he or she is a human being and the respect that a person
owes to himself or herself. In the case before us, it appears to me that the
majority of the Court of Appeal properly pointed out that, in considering the
situation of the mentally disabled, the nature of the care that is normally
provided to them is of fundamental importance. We cannot ignore the fact
that the general objective of the services provided at the Hospital goes
beyond meeting the patients’ primary needs (see Commission des droits de
la personne v. Coutu, 1995 CanLII 2537 (QC TDP), [1995] R.J.Q. 1628
(H.R.T.), at pp. 1652‑ 53). This is apparent from, inter alia, the legislator’s
intention (see An Act respecting health services and social services, R.S.Q.,
c. S‑ 4.2) and the fact that there is a certain level of social consensus
concerning what sort of support services are required in order for the needs
of these people to be met.

[219] This being said, the fact that some patients have a low level of awareness of their
environment because of their mental condition may undoubtedly influence their own
conception of dignity. As Fish J.A. observed:
66

‘’ (…) however, when we are dealing with a document of the nature of the
Charter, it is more important that we turn our attention to an objective
appreciation of dignity and what that requires in terms of the necessary care
and services. In the case at bar, I believe that the trial judge’s findings of
fact indicate, beyond a shadow of a doubt, that, although the discomfort
suffered by the patients of the Hospital was transient, it constituted
interference with the safeguard of their dignity, a right guaranteed by s. 4 of
the Charter, despite the fact that, as the trial judge noted, these patients
might have had no sense of modesty’’. (Quebec (Public Curator) v. Syndicat
national des employés de l'hôpital St-Ferdinand, [1996] 3 SCR 211, 1996
CanLII 172 (SCC) at, paras. 105 and 106-108), (Public Curator).
[220] Furthermore, the Supreme Court found that disrupting services was an interference
of the service recipients’ dignity and causing them a moral prejudice under rules of civil
liability and under the Charter:

Moreover, the pressure that the appellants wanted to bring to bear on the
employer inevitably involved disrupting the services and care normally
provided to the patients of the Hospital, and necessarily involved intentional
interference with their dignity (Quebec (Public Curator) v. Syndicat national
des employés de l'hôpital St-Ferdinand, [1996] 3 SCR 211, 1996 CanLII 172
(SCC) at, paras. 109 and 124) (Public Curator).

[221] While this is not a class action or a civil liability or Charter case, the principle can be
applied here to support the finding that the disruption of services offered to a vulnerable
group of peoples, in this case First Nations children and families, amounts to a breach of
their dignity applying the objective appreciation of dignity principle. Under the CHRA this
would be covered under section 53 (2) (e). This reasoning also apply to First Nations
children and families in the case of the removal of a child from the home, family and
community.

[222] What is more, the Tribunal has already made findings in past rulings in regards to
gaps, delays and denials of essential services to First Nations children under Jordan’s
Principle and also its connection to child welfare, some of them are reproduced here:

Despite Jordan’s Principle being an effective means by which to


immediately address some of the shortcomings in the provision of
child and family services to First Nations identified in the Decision
while a comprehensive reform is undertaken, Canada’s approach to
the principle risks perpetuating the discrimination and service gaps
identified in the Decision, especially with respect to allocating
67

dedicated funds and resources to address some of these issues (see


Decision at para. 356) (…) (see 2017 CHRT 14, at para.78).

The work of the two departments on Jordan’s Principle has highlighted what
all of us knew from years of experience: that there are differences of
opinion, authorities and resources between the two departments that
appear to cause gaps in service to children and families resident on
reserve. The main programs at issue include INAC’s Income Assistance
program and the Child and Family Services program; for Health Canada, it is
Non-Insured Health Benefits program (see 2016 CHRT 2 at, para.369).

Another medical related expenditure identified as a concern is mental


health services. Health Canada’s funding for mental health services is
for short term mental health crises, whereas children in care often
require ongoing mental health needs and those services are not
always available on reserve. Therefore, children in care are not
accessing mental health services due to service delays, limited
funding and time limits on the service. To exacerbate the situation for
some children, if they cannot get necessary mental health services,
they are unable to access school-based programs for children with
special needs that require an assessment/diagnosis from a
psychologist (see Gaps in Service Delivery to First Nation Children and
Families in BC Region at pp. 2-3). (see 2016 CHRT 2 at, para.372).

In the Panel’s view, it is Health Canada’s and AANDC’s narrow


interpretation of Jordan’s Principle that results in there being no cases
meeting the criteria for Jordan’s Principle. This interpretation does not
cover the extent to which jurisdictional gaps may occur in the
provision of many federal services that support the health, safety and
well-being of First Nations children and families. Such an approach
defeats the purpose of Jordan’s Principle and results in service gaps,
delays and denials for First Nations children on reserve. Coordination
amongst all federal departments and programs, especially AANDC and
Health Canada programs, would help avoid these gaps in services to First
Nations children in need (see 2016 CHRT 2 at, para.381).

More importantly, Jordan’s Principle is meant to apply to all First Nations


children. There are many other First Nations children without multiple
disabilities who require services, including child and family services. Having
to put a child in care in order to access those services, when those services
are available to all other Canadians is one of the main reasons this
Complaint was made (see 2016 CHRT 2 at, para.381).

AANDC’s design, management and control of the FNCFS Program, along


with its corresponding funding formulas and the other related
provincial/territorial agreements have resulted in denials of services and
created various adverse impacts for many First Nations children and
68

families living on reserves. Non-exhaustively, the main adverse impacts


found by the Panel are: (…) The narrow definition and inadequate
implementation of Jordan’s Principle, resulting in service gaps, delays
and denials for First Nations children (see 2016 CHRT 2 at, para.458).

In January 2017, two twelve-year-old children tragically took their own


lives in Wapekeka First Nation (“Wapekeka”), a NAN community.
Before the loss of these children, Wapekeka had alerted the federal
government, through Health Canada, to concerns about a suicide pact
amongst a group of young children and youth. This information was
contained in a July 2016 detailed proposal aimed at seeking funding
for an in-community mental health team as a preventative measure.

The Wapekeka proposal was left unaddressed by Canada for several


months with a reactive response coming only after the two youths
committed suicide. The media response from Health Canada was that
it acknowledged it had received the July 2016 proposal in September
2016; however, it came at an “awkward time in the federal funding
cycle’’ (see affidavit of Dr. Michael Kirlew, January 27, 2017, at para. 16).
The Panel acknowledges how inappropriate this response is in such
circumstances and the additional suffering it must have caused (See 2017
CHRT 7 para. 9).

Tragically, in February 2017, two other youths aged 11 and 21 took


their own lives in NAN communities of Deer Lake and
Kitchenuhmaykoosib Inninuwug (see affidavit of Sol Mamakwa, February
13, 2017, at para. 5) (See 2017 CHRT 7 para. 10).

The Panel would like to acknowledge and extend our condolences to the
families and communities of these youths and to all those who have lost
children in similar tragic circumstances (See 2017 CHRT 7 para. 11).

The loss of our children by suicide in Nishnawbe Aski Nation (NAN)


has created untold pain and despair for families, communities and all
of our people. Health Canada’s commitment “to establish a Choose
Life Working Group with NAN aimed at establishing a concrete,
simplified process for communities to apply for Child First Initiative
funding” establishes an important route for our communities in crisis
to access Jordan’s Principle funds (See 2017 CHRT 7 Annex A letter Re:
Choose Life Pilot Working Group, dated March 22, 2017 from Nishnawbe
Aski Nation Grand Chief Alvin Fiddler to Dr. Valerie Gideon, Assistant
Deputy Minister Regional Operations First Nations and Inuit Health Branch
Health Canada).

At the October 30-31, 2019 hearing (October hearing), Canada’ witness,


Dr. Valerie Gideon, Senior Assistant Deputy Minister of the First Nations and
Inuit Health Branch at the Department of Indigenous Services Canada,
69

admitted in her testimony that the Tribunal’s May 2017 CHRT 14 ruling and
orders on Jordan’s Principle definition and publicity measures caused
a large jump in cases for First Nations children. In fact, from July 2016 to
March 2017 there were approximately 5,000 Jordan’s Principle approved
services. After the Panel’s ruling, this number jumped to just under
77,000 Jordan’s Principle approved services in 2017/2018. This number
continues to increase. At the time of the October hearing, over 165 000
Jordan’s Principle approved services have now been approved under
Jordan’s Principle as ordered by this Tribunal. This is confirmed by Dr.
Gideon’s testimony and it is not disputed by the Caring Society.
Furthermore, it is also part of the new documentary evidence
presented during the October hearing and now forms part of the
Tribunal’s evidentiary record. Those services were gaps in services
that First Nations children would not have received but for the
Jordan’s Principle broad definition as ordered by the Panel.

In response to Panel Chair Sophie Marchildon’s questions, Dr. Gideon also


testified that Jordan’s Principle is not a program, it is considered a legal
rule by Canada. This is also confirmed in a document attached as an
exhibit to Dr. Gideon’s affidavit. Dr. Gideon testified that she wrote this
document (see Affidavit of Dr. Valerie Gideon, dated, May 24, 2018 at
exhibit 4, at page 2). This document named, Jordan’s Principle
Implementation-Ontario Region, under the title, Our Commitment states as
follows:

No sun-setting of Jordan’s Principle. Jordan’s Principle is a legal


requirement not a program and thus there will be no sun-setting of
Jordan’s Principle (…) There cannot be any break in Canada’s
response to the full implementation of Jordan’s Principle (see 2019
CHRT 7 at, para. 25).

The Panel is delighted to hear that thousands of services have been


approved since it issued its orders. It is now proven, that this
substantive equality remedy has generated significant change for First
Nations children and is efficient and measurable. While there is still
room for improvement, it also fosters hope. We would like to honor
Jordan River Anderson and his family for their legacy. We also acknowledge
the Caring Society, the AFN and the Canadian Human Rights Commission
for bringing this issue before the Tribunal and for the Caring Society, the
AFN, the COO, the NAN, and the Canadian Human Rights Commission for
their tireless efforts. We also honor the Truth and Reconciliation Commission
for its findings and recommendations. Finally, the Panel recognizes that
while there is more work to do to eliminate discrimination in the long term,
Canada has made substantial efforts to provide services to First Nations
children under Jordan’s Principle especially since November 2017. Those
efforts are made by people such as Dr. Gideon and the Jordan’s Principle
team and the Panel believes it is noteworthy. This is also recognized by the
70

Caring Society in an April 17, 2018 letter filed in the evidence (see Dr.
Valerie Gideon’s affidavit, dated December 21st, 2018, at Exhibit A). This is
not to convey the message that a colonial system which generated racial
discrimination across the country is to be praised for starting to correct it.
Rather, it is recognizing the decision-makers and the public servants’ efforts
to implement the Tribunal’s rulings hence, truly impacting the lives of
children. (see 2019 CHRT 7 at, para. 26).

The Panel finds the outcome of S.J.’s case is unreasonable. The coverage
under Jordan’s Principle was denied because S.J.’s mother registered under
6(2) of the Indian Act and could not transmit status to her in light of the
second-generation cut-off rule. This is the main reason why S.J.’s travel
costs were refused. The second reason is that it was not deemed urgent by
Canada when in fact the situation was not assessed appropriately. Finally,
no one seems to have turned their minds to the needs of the child and her
best interests. There is no indication that a substantive equality analysis has
been employed here. Rather a bureaucratic approach was applied for
denying coverage for a child of just over 18 months (Canada’s team
described the child has being 1 year and a half old, see affidavit of Dr.
Valerie Gideon, dated December 21st, 2018, email chain at Exhibit F), who
has been waiting for this scan from birth. This type of bureaucratic approach
in Programs was linked to discrimination in the Decision (see at, paras. 365-
382 and 391) (see 2019 CHRT 7 at, para.73).

[223] All the above findings support a finding that First Nations children and their families
experienced pain and suffering and a breach of their dignity as a result of gaps, delays and
denials of essential services.

[224] Other evidence in the record further exemplifies that delays, gaps and denials
cause real harm and suffering to the Frist Nations children and their families:

In another case, a child with Batten Disease, a fatal inherited disorder of the
nervous system, had to wait sixteen months to obtain a hospital bed that
could incline at 30 degrees in order to alleviate the respiratory distress that
resulted from her condition. AANDC, Jordan’s Principle Chart Documenting
Cases, October 6, 2013 (see HR, Vol 15, tab 422, p 2).

MR. WUTTKE: All right. So I see that the initial contact took place in 2007
and that bed was actually delivered in 2008. So it took approximately one
year for the child to actually get a bed; is that correct?

MS BAGGLEY: Well, it said the summer of 2008.

MR. WUTTKE: Okay.


71

MS BAGGLEY: “Tomatoe/tomato”.

MR. WUTTKE: Between half a year and three quarters of a year?

MS BAGGLEY: Yes, yes.

MR. WUTTKE: My question regarding this matter, considering it's a child


that has respiratory and could face respiratory failure distress, how is this
length of time between six months to a year to provide a child a bed
reasonable in any circumstances?

MS BAGGLEY: Well, from my perspective, no, that's not reasonable, but


there’s not enough information here to determine what were the reasons.
(see Corinne Baggley Cross Examination, May 1, 2014 (Vol 58, p 117-118,
lines 16-25, 1-12).

[225] The Panel finds there is sufficient evidence in the record as demonstrated above to
justify findings that pain and suffering of the worst kind warranting the maximum
compensation under section 53 (2) (e) of the CHRA is experienced by First Nations
children and families as a result of Canada’s approach to Jordan’s Principle that led to the
Tribunals’ rulings in this case.

[226] First Nations Children are denied essential services. The Tribunal heard extensive
evidence that demonstrates that First Nations children were denied essential services after
a significant and detrimental delay causing real harm to those children and their parents or
grandparents caring for them. The Supreme Court of Canada discussed the objective
component to dignity to mentally disabled people in the Public Curator case above
mentioned and the Panel believes this principle is applicable to vulnerable children in
determining their suffering of being denied essential services. Moreover, as demonstrated
by examples above, some children and families have also experienced serious mental and
physical pain as a result of delays in services.

XIII. Special compensation wilful and reckless

[227] The special compensation remedy sought as part of this ruling is found at para. 53
(3) of the CHRA:

(3) In addition to any order under subsection (2), the member or panel may
order the person to pay such compensation not exceeding twenty thousand
72

dollars to the victim as the member or panel may determine if the member or
panel finds that the person is engaging or has engaged in the discriminatory
practice wilfully or recklessly.

[228] The language of the Act reproduced above refers to the term victim rather than
complainant. As mentioned previously, the wording of the CHRA allows for the distinction
between a complainant who is victim of the discriminatory practice and a victim of a
discriminatory practice who is not a complainant.

The Tribunal in Duverger v. 2553-4330 Québec Inc. (Aéropro), 2019 CHRT


18 (CanLII), recently reiterated this Panel’s legal reasons on the special
compensation, member Gaudreault wrote:

In the decision rendered in First Nations Child & Family Caring Society of
Canada et al. v. Attorney General of Canada (for the Minister of Indian and
Northern Affairs Canada), 2015 CHRT 14 (CanLII) [Family Caring Society],
at paragraph 21, members Sophie Marchildon, Réjean Bélanger and
Edwards P. Lustig addressed the special compensation provided under
subsection 53(3) of the CHRA:

The Federal Court has interpreted this section as being a “. . .punitive


provision intended to provide a deterrent and discourage those who
deliberately discriminate” (Canada (Attorney General) v. Johnstone, 2013
FC 113 (CanLII), at para. 155, aff’d 2014 FCA 110 (CanLII) [Johnstone FC]).
A finding of wilfulness requires “(…) the discriminatory act and the
infringement of the person’s rights under the Act is intentional” (Johnstone
FC, at para. 155). Recklessness involves “. . .acts that disregard or show
indifference for the consequences such that the conduct is done wantonly or
heedlessly” (Johnstone FC, at para. 155), (see Duverger at para.293).

[229] The objective of the CHRA is to remedy discrimination (Robichaud at para.13). As


opposed to remedies under section 53 (2) (e) which are not meant to punish the author of
the discrimination, as mentioned above, the Federal Court in Johnstone found that section
53 (3) of the CHRA is a punitive provision.

[230] In order to be wilful or reckless, “…some measure of intent or behaviour so devoid


of caution or without regard to the consequences of that behaviour” must be found
(Canada (Attorney General) v. Collins, 2011 FC 1168 (CanLII), at para. 33). Again, the
award of the maximum amount under this section should be reserved for the very worst
cases. (see Grant at, para.119).
73

[231] The Panel finds that Canada’s conduct was devoid of caution with little to no regard
to the consequences of its behavior towards First Nations children and their families both
in regard to the child welfare program and Jordan’s Principle. Canada was aware of the
discrimination and of some of its serious consequences on the First Nations children and
their families. Canada was made aware by the NPR in 2000 and even more so in 2005
from its participation and knowledge of the WEN DE report. Canada did not take sufficient
steps to remedy the discrimination until after the Tribunal’s orders. As the Panel already
found in previous rulings, Canada focused on financial considerations rather than on the
best interest of First Nations children and respecting their human rights.

[232] When looking at the issue of wilful and reckless discriminatory practice, the context
of the claim is important. In this case we are in a context of repeated violations of human
rights of vulnerable First Nations children over a very long period of time by Canada who
has international, constitutional and human rights obligations towards First Nations
children and families. Moreover, the Crown must act honourably in all its dealings with
Aboriginal Peoples:

First Nations children and families on reserves are in a fiduciary relationship


with AANDC. In the provision of the FNCFS Program, its corresponding
funding formulas and the other related provincial/territorial agreements, “the
degree of economic, social and proprietary control and discretion asserted
by the Crown” leaves First Nations children and families “…vulnerable to the
risks of government misconduct or ineptitude” (Wewaykum at para. 80). This
fiduciary relationship must form part of the context of the Panel’s analysis,
along with the corollary principle that in all its dealings with Aboriginal
peoples, the honour of the Crown is always at stake. As affirmed by the
Supreme Court in Haida Nation, at paragraph 17:
Nothing less is required if we are to achieve “the reconciliation of the pre-
existence of aboriginal societies with the sovereignty of the Crown”:
Delgamuukw, supra, at para. 186, quoting Van der Peet, supra, at para. 31,
(see Decision 2016 CHRT 2 at, para. 95).

[233] In light of Canada’s obligations above mentioned, the fact that the systemic racial
discrimination adversely impacts children and causes them harm, pain and suffering is an
aggravating factor than cannot be overlooked.

[234] The Panel finds it has sufficient evidence to find that Canada’s conduct was wilful
and reckless resulting in what we have referred to as a worst-case scenario under our Act.
74

[235] What is more, many federal government representatives of different levels were
aware of the adverse impacts that the Federal FNCFS Program had on First Nations
children and families and some of those admissions form part of the evidence and were
referred to in the Panel’s findings. A review of the Panel’s findings contained in the
Decision and rulings supports this.

[236] The Panel rejects Canada’s position that the reports in the evidentiary record and
findings cannot lead to a finding of wilful and reckless conduct by this Tribunal’s findings
because they were improving the services over time. WEN DE specifically cautioned
against a piece meal implementation of the recommendations and that is precisely what
Canada did. This was also explained in the Decision.

[237] In addition, the Tribunal already made findings about Canada’s conduct and
awareness of the adverse impacts to First Nations children and their families in past
rulings although too numerous to reproduce them entirely in this ruling, some are above
mentioned and some will be mentioned here and those findings cannot be challenged
now:

In another presentation, AANDC describes Directive 20-1 as “broken”:

The current system is BROKEN, i.e. piecemeal and fragmented

The current system contributes to dysfunctional relationships, i.e.


jurisdictional issues (at federal and provincial levels), lack of
coordination, working at cross purposes, silo mentality

[…]

The current program focus is on protection (taking children into care)


rather than prevention (supporting the family)

[…]

Early intervention/prevention has become standard practice in the


provinces/territories, numerous U.S. states, and New Zealand

INAC CFS has been unable to keep up with the provincial changes

Where prevention supports are common practice, results have


demonstrated that rates of children in care and costs are stabilized
and/or reduced
75

(Annex, ex. 35 at pp. 2-3 [Putting Children and Families First in Alberta
presentation]) (see 2016 CHRT 2 at, para.270).

Putting Children and Families First in Alberta presentation touts prevention


as the ideal option to address these problems at page 4:

Early prevention and child-centered outcomes are the missing pieces


of the puzzle for FN children and families living on reserve

Early prevention supports the agenda for improving quality of life for
children and families thereby leading to improved outcomes in the
areas of early childhood development, education, and health (see 2016
CHRT 2 at, para.271).

Finally, the Putting Children and Families First in Alberta presentation states
at page 5:

The facts are clear:

Wen:De Report - Early intervention/prevention is KEY

[…]

[238] The above citations were presentations prepared by staff in the Federal
Government supporting the fact that they were well aware of what needed to be done to
stop the systemic racial discrimination and that prevention is a key component. This being
said, while Canada increased prevention funds, it applied an insufficient and piece meal
approach and the Panel also found this in the Decision.

[239] First Nation agencies have been lobbying Canada since 1998 to change the
system (see 2016 CHRT 2 at, para.272). Ten years later, in a 2018 CHRT 4 ruling, the
Tribunal had to order Canada to fund prevention services:

Canada currently funds payments of actual costs for maintenance expenses


when children are apprehended and removed from their homes and families
and has developed a methodology to pay for these expenses. Proceeding
this way and not doing the same for prevention, perpetuates the
historical disadvantage and the legacy of residential schools already
explained in the Decision and rulings. It incentivizes the removal of
children rather than assisting communities to stay together (see 2018
CHRT at, para. 230). All this time Canada knew the benefit of prevention
services to keep children safe within their homes and families yet it did not
sufficiently fund and reform the system to foster this shift. This is contrary to
the Tribunal’s order to provide services based on need, which requires
76

Canada to obtain each First Nation agency and First Nation’s specific needs.
Finally, allowing those agencies that confirm they lack capacity to keep the
budget funds from year to year instead of returning them could potentially
assist in addressing the issue. As far as other agencies that do have
capacity are concerned, Canada is unilaterally deciding for them and
delaying prevention services and least disruptive measures under a
false premise. Proceeding in this fashion is harming children (see 2018
CHRT 4 at para.143). [161] The Panel has always recognized that there
may be some children in need of protection who need to be removed from
their homes. However, in the Decision, the findings highlighted the fact that
too many children were removed unnecessarily, when they could have had
the opportunity to remain at home with prevention services. (see 2018
CHRT 4 at, para.161).

The Panel finds it problematic that again, Canada’s rationale is based


on the funding cycle not the best interests of children, and not on
being found liable under the CHRA. Moreover, there is a major problem
with Budget 2016 being rolled out over 5 years. The Panel did not foresee it
would take that long to address immediate relief. Leaving the highest
investments for years 4 and 5, the Panel finds it does not fully address
immediate relief (see 2018 CHRT 4 at para.146).

This being said, the Panel is encouraged by the steps made by Canada so
far on the issue of immediate relief and the items that needed to be
addressed immediately, However, we also find Canada not in full-
compliance of this Panel’s previous orders for least disruptive
measures/prevention, small agencies, intake and investigations and legal
costs. Additionally, at this time, the Panel finds there is a need to make
further orders in the best interest of children (see 2018 CHRT 4 at para.195).

[240] The Panel made numerous findings on the need for prevention services to reverse
the removal of First Nations children from their homes, families and communities:

Furthermore, several jurisdictional issues were identified as challenging the


effectiveness of service delivery, notably the availability and access to
supportive services for prevention. In this regard, the evaluation noted that a
common implementation challenge for FNCFS Agencies was the need for
specialized services at the community level (for example, Fetal Alcohol
Spectrum Disorder assessments, therapy, counselling and addictions
support). Moreover, the evaluation found of key importance the
availability and access to supportive services for prevention.
According to the evaluation, these services are not available through
AANDC funding, though they are provided by other government
departments and programs either on reserve or off reserve (see
AANDC Evaluation of the Implementation of the EPFA in Alberta at pp. 16-
18, 21-24) (see 2016 CHRT at, para.286).
77

Difficulties based on remoteness were also identified as a main challenge in


Saskatchewan and Nova Scotia. One third of agencies reported high cost
and time commitments required to travel to different reserves, along with the
related risks associated with not reaching high-risk cases in a timely manner.
In Nova Scotia, where there is only one FNCFS Agency with two offices
throughout the province, the evaluation noted it can take two to three hours
to reach a child in the southwestern part of the province. On the other hand,
the provincial model is structured so that its agencies are no more than a
half-hour away from a child in urgent need. In extreme cases, the Nova
Scotia FNCFS Agency has had to rely on the provincial agencies for
assistance. According to the evaluation, because of these issues the
province of Nova Scotia has recommended that AANDC provide funding to
support a third office in the southwestern part of the province (see AANDC
Evaluation of the Implementation of the EPFA in Saskatchewan and Nova
Scotia at pp. 35-36) (see 2016 CHRT 2 at, para.291).

AANDC’s Departmental Audit and Evaluation Branch also performed its own
evaluation of the FNCFS Program in 2007 (see Annex, ex. 14 [2007
Evaluation of the FNCFS Program]). The findings and recommendations of
the 2007 Evaluation of the FNCFS Program reflect those of the NPR and
Wen:De reports. Of note, at page ii, the 2007 Evaluation of the FNCFS
Program makes the following findings:

Although the program has met an increasing demand for services, it is not
possible to say that is has achieved its objective of creating a more secure
and stable environment for children on reserve, nor has it kept pace with a
trend, both nationally and internationally, towards greater emphasis on early
intervention and prevention.

The program’s funding formula, Directive 20-1, has likely been a factor in
increases in the number of children in care and Program expenditures
because it has had the effect of steering agencies towards in-care options -
foster care, group homes and institutional care because only these agency
costs are fully reimbursed (see 2016 CHRT 2 at, para.273).

(…) correct the weakness in the First Nations Child and Family Services
Program’s funding formula, which encourages out-of-home placements for
children when least disruptive measures (in-home measures) would be more
appropriate. Well-being and safety of children must be agencies’ primary
considerations in placement decisions (see 2016 CHRT 2 at, para.274).

In a September 11, 2009 response to questions raised by the Standing


Committee on Aboriginal Affairs and Northern Development, Deputy Minister
Michael Wernick described the EPFA as an “…approach that will result in
better outcomes for First Nation children” (Annex, ex. 36). Mr. Wernick’s
response indicates AANDC’s awareness of the impacts that the structure
78

and funding for the FNCFS Program under Directive 20-1 has on the
outcomes for First Nations children (see 2016 CHRT 2 at, para.276).

However, as the 2008 Report of the Auditor General of Canada, the 2009
Report of the Standing Committee on Public Accounts, the 2011 Status
Report of the Auditor General of Canada, and the 2012 Report of the
Standing Committee on Public Accounts pointed out, while the EPFA is an
improvement on Directive 20-1, it still relies on the problematic assumptions
regarding children in care, families in need, and population levels to
determine funding. Furthermore, many provinces and the Yukon remain
under Directive 20-1 despite AANDC’s commitment to transition those
jurisdictions to the EPFA (see 2016 CHRT 2 at, para.278).

Despite being aware of the adverse impacts resulting from the FNCFS
Program for many years, AANDC has not significantly modified the program
since its inception in 1990. Nor have the schedules of the 1965 Agreement
in Ontario been updated since 1998. Notwithstanding numerous reports and
recommendations to address the adverse impacts outlined above, including
its own internal analysis and evaluations, AANDC has sparingly
implemented the findings of those reports. While efforts have been made to
improve the FNCFS Program, including through the EPFA and other
additional funding, those improvements still fall short of addressing the
service gaps, denials and adverse impacts outlined above and, ultimately,
fail to meet the goal of providing culturally appropriate child and family
services to First Nations children and families living on-reserve that are
reasonably comparable to those provided off-reserve (see 2016 CHRT 2 at,
para. 461).

[241] One of the most tragic and worst-case scenarios in this case and in the Jordan’s
Principle context is one of unreasonable delays in providing prevention and mental health
services as exemplified in the situation in the Nation of Wapekeka. This delay was
intentional and justified by Canada according to financial and administrative
considerations. It was devoid of caution and without regard for the serious consequences
on the children and their families. Some extracts of the Panel’s findings are reproduced
here:

The Wapekeka proposal was left unaddressed by Canada for several


months with a reactive response coming only after the two youths committed
suicide. The media response from Health Canada was that it acknowledged
it had received the July 2016 proposal in September 2016; however, it came
at an “awkward time in the federal funding cycle” (see affidavit of Dr. Michael
Kirlew, January 27, 2017, at para. 16) (see 2017 CHRT 14 at, para. 89).
79

While Canada provided assistance once the Wapekeka suicides occurred,


the flaws in the Jordan’s Principle process left any chance of preventing the
Wapekeka tragedy unaddressed and the tragic events only triggered a
reactive response to then provide services. On a positive note, as mentioned
above, Health Canada has since committed to establishing a Choose Life
Working Group with the NAN, aimed at establishing a concrete, simplified
process for communities to apply for Child-First Initiative (Jordan’s Principle)
funding. Nevertheless, the tragic events in Wapekeka highlight the need for
a shift in process coordination around Jordan’s Principle (see 2017 CHRT
14 at, para. 90).

Ms. Buckland acknowledged that the Wapekeka proposal identified a gap in


services and that Jordan’s Principle funds could have been allocated to
address that gap. Despite this, and the fact that it was a life or death
situation, Ms. Buckland indicated that because it was a group request, it
would be processed like any other group request and go forward for the
Assistant Deputy Minister’s signature. In the end, she suggested it would
have likely taken a period of two weeks to address the Wapekeka proposal
(see Transcript of Cross-Examination of Ms. Buckland at p. 174, lines 19-21;
p. 175, lines 1-4; p. 180, lines 1-9; and, p. 182, lines 11-16). (see 2017
CHRT 14 at, para. 91).

If a proposal such as Wapekeka’s cannot be dealt with expeditiously, how


are other requests being addressed? While Canada has provided detailed
timelines for how it is addressing Jordan’s Principle requests, the evidence
shows these processes were newly created shortly after Ms. Buckland’s
cross-examination. There is no indication that these timelines existed prior to
February 2017. Rather, the evidence suggests a built-in delay was part of
the process, as there was no clarity surrounding what the process actually
was [see “Jordan’s Principle, ADM Executive Oversight Committee, Record
of Decisions”, September 2, 2016 (Affidavit of Robin Buckland, January 25,
2017, Exhibit F, at p. 3); see also Transcript of Cross-Examination of Ms.
Buckland at p. 82, lines 1-12] (see 2017 CHRT 14 at, para. 92).

More significantly, Ms. Buckland’s comments suggest the focus of Canada’s


Jordan’s Principle processing remains on Canada’s administrative needs
rather than the seriousness of the requests, the need to act expeditiously
and, most importantly, the needs and best interest of children. It is clear that
the arm of the federal government first contacted still does not address the
matter directly by funding the service and, thereafter, seeking
reimbursement as is required by Jordan’s Principle. The Panel finds
Canada’s new Jordan’s Principle process to be very similar to the old one,
except for a few additions. In developing this new process, there does not
appear to have been much consideration given to the shortcomings of the
previous process. (see 2017 CHRT 14 at, para. 93).
80

The timelines imposed on First Nations children and families in attempting to


access Jordan’s Principle funding give the government time to navigate
between its own services and programs similar to what the Panel found to
be problematic in the Decision (see 2017 CHRT 14 at, para. 94).

[242] The evidence and findings above support the finding that Canada was aware of the
discrimination adversely impacting First Nations children and families in the contexts of
child welfare and/or Jordan’s Principle and therefore, Canada’s conduct was devoid of
caution and without regard for the consequences on First Nations children and their
parents or grand-parents which amounts to a reckless conduct compensable under
section 53 (3) of the CHRA. The Panel finds that Canada’s conduct amounts to a worst-
case scenario warranting the maximum compensation of $20,000 under the Act.

[243] The AFN filed affidavit evidence on the Indian Residential School Settlement
Agreement (IRSSA) as part of these proceedings and the Panel opted to adopt a similar
approach in determining the remedies to victims/survivors in this case so as to avoid the
burdensome and potentially harmful task of scaling the suffering per individual in remedies
that are capped at a $20,000$ under the CHRA. The dispositions of the IRSSA found in
Mr. Jeremy Kolodziej’s affidavit affirmed on April 4, 2019 and reproduced below illustrate
the rationale behind the lump sum payment to those victims/survivors who attended
Residential School:

“CEP” and “Common Experience Payment” mean a lump sum payment


made to an Eligible CEP Recipient in the manner set out in Article Five (5) of
this Agreement;

5.02 Amount of CEP

The amount of the Common Experience Payment will be:

(1) ten thousand dollars ($10,000.00) to every Eligible CEP Recipient who
resided at one or more Indian Residential Schools for one school year or
part thereof; and

(2) an additional three thousand ($3,000.00) to every eligible CEP Recipient


who resided at one or more Indian Residential Schools for each school year
or part thereof, after the first school year; and (3) less the amount of any
advance payment on the CEP received

Recommendations
81

1.0 To ensure that the full range of harms are redressed, we recommend
that a lump sum award be granted to any person who attended an Indian
Residential School, irrespective of whether they suffered separate harms
generated by acts of sexual, physical or severe emotional abuse.

The Indian Residential School Policy was based on racial identity. It forced
students to attend designated schools and removed them from their families
and communities. The Policy has been criticized extensively. The
consequences of this policy were devastating to individuals and
communities alike, and they have been well documented. The distinctive
and unique forms of harm that were a direct consequence of this
government policy include reduced self-esteem, isolation from family, loss of
language, loss of culture, spiritual harm, loss of a reasonable quality of
education, and loss of kinship, community and traditional ways. These
symptoms are now commonly understood to be “Residential School
Syndrome.” Everyone who attended residential schools can be assumed to
have suffered such direct harms and is entitled to a lump sum payment
based upon the following:

1.1 A global award of sufficient significance to each person who attended


Indian Residential Schools such that it will provide solace for the above
losses and would signify and compensate for the seriousness of the injuries
inflicted and the life-long harms caused.

1.2 An additional amount per each additional year or part of a year of


attendance at an Indian Residential School to recognize the duration and
accumulation of harms, including the denial of affection, loss of family life
and parental guidance, neglect, depersonalization, denial of a proper
education, forced labour, inferior nutrition and health care, and growing up in
a climate of fear, apprehension, and ascribed inferiority.

As attendance at residential school is the basis for recovery, a simple


administrative process of verification is all that is required to make the
payments as the government is in possession of the relevant
documentation. (emphasis ours).

[244] The Panel believes that the above rationale is applicable in this case. As for the
process, it needs to be discussed further as it will be explained in the next section.

XIV. Orders

All the following orders will find application once the compensation process referred to
below has been agreed to by the Parties or ordered by the Tribunal.
82

Compensation for First Nations children and their parents or grand-parents in cases
of unnecessary removal of a child in the child welfare system

[245] The Panel finds there is sufficient evidence and other information (see section 50
(3) (c) of the CHRA), in this case to establish, on a balance of probabilities, that Canada’s
systemic racial discrimination found in the Tribunal’s Decision 2016 CHRT 2 and
subsequent rulings: 2016 CHRT 10, 2016 CHRT 16, 2018 CHRT 4, resulted in harming
First Nations children living on reserve and in the Yukon Territory who, as a result of
poverty, lack of housing or deemed appropriate housing, neglect and substance abuse
were unnecessarily apprehended and placed in care outside of their homes, families and
communities and especially in regards to substance abuse, did not benefit from prevention
services in the form of least disruptive measures or other prevention services permitting
them to remain safely in their homes, families and communities. Those children
experienced pain and suffering of the worst kind warranting the maximum award of
remedy of $20,000 under section 53 (2)(e) of the CHRA. Canada is ordered to pay $
20,000 to each First Nation child removed from its home, family and Community between
January 1, 2006 (date following the last WEN DE report as explained above) until the
earliest of the following options occur: the Panel informed by the parties and the evidence
makes a determination that the unnecessary removal of First Nations children from their
homes, families and communities as a result of the discrimination found in this case has
ceased; the parties agreed on a settlement agreement for effective and meaningful long
term relief; the Panel ceases to retain jurisdiction and beforehand amends this order. Also,
following the process discussed below.

[246] The Panel believes there is sufficient evidence and other information to find that
even if a First Nation child has been apprehended and then reunited with the immediate or
extended family at a later date, the child and family have suffered during the time of
separation and that the trauma outlasts the time of separation.

[247] The Panel finds there is sufficient evidence and other information in this case to
establish, on a balance of probabilities, that Canada’s systemic racial discrimination found
in the Tribunal’s Decisions 2016 CHRT 2 and subsequent rulings: 2016 CHRT 10, 2016
CHRT 16, 2018 CHRT 4, resulted in harming First Nations parents or grand-parents living
83

on reserve and in the Yukon Territory who, as a result of poverty, lack of housing or
deemed appropriate housing, neglect and substance abuse had their child unnecessarily
apprehended and placed in care outside of their homes, families and communities and,
especially in regards to of substance abuse, did not benefit from prevention services in the
form of least disruptive measures or other prevention services permitting them to keep
their child safely in their homes, families and communities. Those parents or grand-
parents experienced pain and suffering of the worst kind warranting the maximum award
of remedy of $20,000 under section 53 (2)(e) of the CHRA.

[248] Canada is ordered to pay $ 20,000 to each First Nation parent or grand-parent of a
First Nation child removed from its home, family and Community between January 1,
2006 and until the earliest of the following options occur: the Panel informed by the parties
and the evidence makes a determination that the unnecessary removal of First Nations
children from their homes, families and communities as a result of the discrimination found
in this case has ceased; the parties agreed on a settlement agreement for effective and
meaningful long term relief; the Panel ceases to retain jurisdiction and beforehand amends
this order. Also, following the process discussed below. This order applies for each child
removed from the home, family and community as a result of the above-mentioned
discrimination. For clarity, if a parent or grand-parent lost 3 children in those
circumstances, it should get $60,000, the maximum amount of $20,000 for each child
apprehended.

Compensation for First Nations children in cases of necessary removal of a child in


the child welfare system

[249] The Panel finds there is sufficient evidence and other information in this case to
establish, on a balance of probabilities, that Canada’s systemic racial discrimination found
in the Tribunal’s Decision 2016 CHRT 2 and subsequent rulings: 2016 CHRT 10, 2016
CHRT 16, 2018 CHRT 4, resulted in harming First Nations children living on reserve and
in the Yukon Territory who, as a result of abuse were necessarily apprehended from their
homes but placed in care outside of their extended families and communities and
therefore, did not benefit from prevention services in the form of least disruptive measures
or other prevention services permitting them to remain safely in their extended families and
84

communities. Those children experienced pain and suffering of the worst kind warranting
the maximum award of remedy of $20,000 under section 53 (2)(e) of the CHRA. Canada
is ordered to pay $20,000 to each First Nation child removed from its home, family and
Community from January 1, 2006 until the earliest of the following options occur: the
Panel informed by the parties and the evidence makes a determination that the
unnecessary removal of First Nations children from their homes, families and communities
as a result of the discrimination found in this case has ceased; the parties agreed on a
settlement agreement for effective and meaningful long term relief; the Panel ceases to
retain jurisdiction and beforehand amends this order. Also, following the process
discussed below.

Compensation for First Nations children and their parents or grand-parents in cases
of unnecessary removal of a child to obtain essential services and/or experienced
gaps, delays and denials of services that would have been available under Jordan’s
Principle

[250] The Panel finds there is sufficient evidence and other information in this case to
establish, on a balance of probabilities, that Canada’s systemic racial discrimination found
in the Tribunal’s Decision 2016 CHRT 2 and subsequent rulings: 2017 CHRT 7, 2017
CHRT 14, 2017 CHRT 35 and 2018 CHRT 4, resulted in harming First Nations children
living on reserve or off-reserve who, as a result of a gap, delay and/or denial of services
were deprived of essential services and placed in care outside of their homes, families and
communities in order to receive those services or without being placed in out of home care
were denied services and therefore did not benefit from services covered under Jordan’s
Principle as defined in 2017 CHRT 17 and 35 (for example, mental health and suicide
preventions services, special education, dental etc.). Finally, children who received
services upon reconsideration ordered by this Tribunal and children who received services
with unreasonable delays have also suffered during the time of the delays and denials. All
those children above mentioned experienced pain and suffering of the worst kind
warranting the maximum award of remedy of $20,000 under section 53 (2)(e) of the
CHRA. Canada is ordered to pay $ 20,000 to each First Nation child removed from its
home and placed in care in order to access services and for each First Nations child who
85

was not removed from the home and was denied services or received services after an
unreasonable delay or upon reconsideration ordered by this Tribunal, between December
12, 2007 (date of the adoption in the House of Commons of the Jordan’s Principle) and
November 2, 2017 (date of the Tribunal’s 2017 CHRT 35 ruling on Jordan’s Principle),
following the process discussed below.

[251] The Panel finds there is sufficient evidence and other information in this case to
establish, on a balance of probabilities, that Canada’s systemic racial discrimination found
in the Tribunal’s Decision 2016 CHRT 2 and subsequent rulings: 2017 CHRT 7, 2017
CHRT 14, 2017 CHRT 35 and 2018 CHRT 4, resulted in harming First Nations parents or
grand-parents living on reserve or off reserve who, as a result of a gap, delay and/or denial
of services were deprived of essential services for their child and had their child placed in
care outside of their homes, families and communities in order to receive those services
and therefore, did not benefit from services covered under Jordan’s Principle as defined in
2017 CHRT 17 and 35. Those parents or grand-parents experienced pain and suffering of
the worst kind warranting the maximum award of remedy of $20,000 under section 53
(2)(e) of the CHRA. Canada is ordered to pay $ 20,000 to each First Nation parent or
grand-parent who had their child removed and placed in out-of-home care in order to
access services and for each First Nations parent or grand-parent who’s child was not
removed from the home and was denied services or received services after an
unreasonable delay or upon reconsideration ordered by this Tribunal, between December
12, 2007 (date of the adoption in the House of Commons of the Jordan’s Principle) and
November 2, 2017 (date of the Tribunal’s 2017 CHRT 35 ruling on Jordan’s Principle),
following the process discussed below.

[252] It should be understood that the pain and suffering compensation for a First Nation
child, parent or grand-parent covered under the Jordan’s Principle orders cannot be
combined with the other orders for compensation for removal of a home, a family and a
community rather, the removal of a child from a home is included in the Jordan’s Principle
orders.

[253] The Panel finds as explained above there is sufficient evidence and other
information in this case to establish on a balance of probabilities that Canada was aware
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of the discriminatory practices of its child welfare Program offered to First Nations children
and families and also of the lack of access to services under Jordan’s Principle for First
Nations children and families. Canada’s conduct was devoid of caution and without regard
for the consequences experienced by First Nations children and their families warranting
the maximum award for remedy under section 53(3) of the CHRA for each First Nation
child and parent or grand-parent identified in the orders above.

[254] Canada is ordered to pay $ 20,000 to each First Nation child and parent or grand-
parent identified in the orders above for the period between January 1, 2006 and until the
earliest of the following options occur: the Panel informed by the parties and the evidence
makes a determination that the unnecessary removal of First Nations children from their
homes, families and communities as a result of the discrimination found in this case has
ceased and effective and meaningful long term relief is implemented; the parties agreed
on a settlement agreement for effective and meaningful long term relief; the Panel ceases
to retain jurisdiction and beforehand amends this order for all orders above except
Jordan’s Principle orders given that the Jordan’s Principle orders are for the period
between December 12, 2007 and November 2, 2017 as explained above and, following
the process discussed below.

[255] The term parent or grand-parent recognizes that some children may not have
parents and were in the care of their grand-parents when they were removed from the
home or experienced delays, gaps and denials in services. The Panel orders
compensation for each parent or grand-parent caring for the child in the home. If the child
is cared for by two parents, each parent is entitled to compensation as described above. If
two grand-parents are caring for the child, both grand-parents are entitled to compensation
as described above.

[256] For clarity, parents or grand-parents who sexually, physically or psychologically


abused their children are entitled to no compensation under this process. The reasons
were provided earlier in this ruling.

[257] A parent or grand-parent entitled to compensation under section 53 (2) (e) of the
CHRA above and, who had more than one child unnecessarily apprehended is to be
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compensated $20,000 under section 53 (3) of the CHRA per child who was unnecessarily
apprehended or denied essential services.

XV. Process for compensation

[258] The Panel in considering access to justice, efficiency and expeditiousness has
opted for the above orders to avoid a case-by-case assessment of degrees of pain and
suffering for each child, parent or grand-parent referred to in the orders above. As stated
by the NAN, there is no perfect solution on this issue, the Panel agrees. The difficulty of
the task at hand does not justify denying compensation to victims/survivors. In recognizing
that the maximum of $20,000 is warranted for any of the situations described above, the
case-by-case analysis of pain and suffering is avoided and it is attributed to a vulnerable
group of victims/survivors who as exemplified by the evidence in this case have suffered
as a result of the systemic racial discrimination. Some children and parents or grand-
parents may have suffered more than others however, the compensation remedies are
capped under the CHRA and the Panel cannot award more than the maximum allowed
even if it is a small amount in comparison to the degree of harm and of racial
discrimination experienced by the First Nations children and their families. The maximum
compensation awarded is considered justifiable for any child or adult being part of the
groups identified in the orders above.

[259] This type of approach to compensation is similar to the Common Experience


Payment compensation in the IRSSA outlined above. The Common experience payment
recognized that the experience of living at an Indian Residential School had impacted all
students who attended these institutions. The CEP compensated all former students who
attended for the emotional abuse suffered, the loss of family life, the loss of language
culture, etc. (see Affidavit of Mr. Jeremy Kolodziej’s dated April 4 2019 at, para.10).

[260] The Panel prefers AFN’s request that compensation be paid to victims directly
following an appropriate process instead of being paid in a fund where First Nations
children and families could access services and healing activities to alleviate some of the
effects of the discrimination they experienced. The Panel is not objecting to a trust fund
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per se, rather it objects that the compensation be paid in a trust fund to finance services
and healing activities in lieu of financial compensation as suggested by the Caring Society.
Such meaningful activities should be offered by Canada however, not in replacement of
financial compensation to victims/survivors. Financial Compensation belongs to the
victims/survivors who are the ones who should be empowered to decide for themselves on
how best to use this financial compensation.

[261] However, the Panel also acknowledges the Caring Society’s argument that it is not
appropriate to pay $40,000 to a 3-year-old. Therefore, there is a need to establish a
process where the children who are under 18 or 21 years old have the compensation paid
to them secured in a fund that would be accessible upon reaching majority.

[262] In terms of Jordan’s Principle, many children who were denied services and who
are still living with their parents could have the compensation funds administered by their
parents or grand-parents until the age of majority.

[263] For all the other children who have no parents, grand-parents or responsible adult
family members and who are underage, a trust fund could be an option amongst others
that should be part of the discussions referred to below.

[264] Special protections for mentally disabled children and parents or grand-parents who
abuse substances that may affect their judgment should be considered in the process.

[265] It would be preferable that the Social benefits of victims/survivors not be affected by
compensation remedies. This can form part of the process for compensation discussions.

[266] The possibility for individual victims/survivors to opt-out should form part of this
compensation process.

[267] Given that the parties and interested parties in this case are all First Nations except
the Commission and the AGC and, that they all have different views on the appropriate
definition of a First Nation child in this case, it is paramount that this form part of the
discussions on the process for compensation. The Panel reiterates that it recognizes the
First Nations human rights and Indigenous rights of self-determination and self-
governance.
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[268] If a trust fund and/or committee is proposed, it may be valuable to also include non-
political members on the trust fund and/or committee such as adult victims/survivors,
Indigenous women, elders, grandmothers, etc.

[269] Additionally, the Panel recognizes the need for a culturally safe process to locate
the victims/survivors identified above namely, First Nations children and their parents or
grand-parents. The process needs to respect their rights and their privacy. The Indian
registry and Jordan’s Principle process and record are tools amongst other possible tools
to assist in locating victims/survivors. There is also a need to establish an independent
process for distributing the compensation to the victims/survivors. The AFN and the Caring
Society have both expressed an interest to assist in that regard. Therefore, Canada shall
enter into discussions with the AFN and the Caring Society on this issue. The Commission
and the interested parties should be consulted in this process however, they are not
ordered to participate if they decide not to. The Panel is not making a final determination
on the process here rather, it will allow parties to discuss possible options and return to the
Tribunal with propositions if any, no later than December 10, 2019. The Panel will then
consider those propositions and make a determination on the appropriate process to
locate victims/survivors and to distribute compensation.

[270] As part of the compensation process consultation, the Panel welcomes any
comment/suggestion and request for clarification from any party in regards to moving
forward with the compensation process and/or the wording and/or content of the orders.
For example, if categories of victims/survivors should be further detailed and new
categories added.

XVI. Interest

[271] Pursuant to section 53(4) of the Act, the Complainants seek interest on any award
of compensation made by the Tribunal.

[272] Section 53(4) allows for the Tribunal to award interest at a rate and for a period it
considers appropriate:
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(4) Subject to the rules made under section 48.9, an order to pay
compensation under this section may include an award of interest at a rate
and for a period that the member or panel considers appropriate.

[273] The language of the Act reproduced above refers to the term victim rather than
complainant. As mentioned previously, the wording of the CHRA allows for the distinction
between a complainant who is victim of the discriminatory practice and a victim of a
discriminatory practice who is not a complainant.

[274] Subject to the rules made under section 48.9, an order to pay compensation under
this section may include an award of interest at a rate and for a period that the member or
panel considers appropriate.

[275] As such, the Panel grants interest on the compensation awarded, at the current
Bank of Canada rate, as follows:

[276] The compensation for pain and suffering and special compensation includes an
award of interest for the same periods covered in the above orders. This approach was
used by the Tribunal in the past see for example, Grant v. Manitoba Telecom Services
Inc., 2012 CHRT 20 at, para.21).

XVII. Retention of jurisdiction

[277] The Panel retains jurisdiction until the issue of the process for compensation has
been resolved by consent order or otherwise and will then revisit the need for further
retention of jurisdiction on the issue of compensation. This does not affect the Panel’s
retention of jurisdiction on other issues in this case.

Signed by

Sophie Marchildon
Edward P. Lustig
Tribunal Members
Ottawa, Ontario
September 6, 2019
Canadian Human Rights Tribunal

Parties of Record

Tribunal File: T1340/7008

Style of Cause: First Nations Child & Family Caring Society of Canada et al. v. Attorney
General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)

Ruling of the Tribunal Dated: September 6, 2019

Date and Place of Hearing: April 25 and 26, 2019


Gatineau, Québec

Appearances:

David Taylor and Sarah Clarke, counsel for the First Nations Child and Family Caring
Society of Canada, the Complainant

Stuart Wuttke and Thomas Milne, counsel for Assembly of First Nations, the Complainant

Brian Smith and Jessica Walsh, counsel for the Canadian Human Rights Commission

Robert Frater, Q.C. and Max Binnie, counsel for the Respondent

Maggie Wente, counsel for the Chiefs of Ontario, Interested Party

Akosua Matthews and Molly Churchill, counsel for the Nishnawbe Aski Nation, Interested
Party